A.G. JOSEPH @ JOSEPH ALOOR (DIED), Vs. M.J. JOSEPH MANICHIRA HOUSE, ARUMANOOR, KOTTAYAM TALUK AND STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM

JUDGEMENT

(1.) The legal heirs of the deceased complainant are prosecuting this appeal filed under Section 138 of the N.I. Act. The accused therein was acquitted by the learned Magistrate under Section 255(1) Cr.P.C. Ext.P1 cheque is dated 4.11.2003. It was issued by the accused to discharge a sum of Rs. 2,86,300/-. When the cheque was presented for encashment it was dishonoured on the ground of insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent. It was acknowledged by the accused. The amount covered by Ext.P1 was not paid. Hence the complaint was filed.

(2.) The complainant got himself examined as P.W.1 and Exts.P1 to P6 were marked. Two witnesses including the Advocate who issued Ext.D2 letter were examined as D.W.1 and D.W.2. Exts.D1 to D16 were marked on the side of the defence.

(3.) The learned Magistrate accepted and acted upon Ext.D2 letter proved through D.W.2 the Advocate which indicates that the principal amount payable by the accused to the complainant was Rs. Two lakhs and that Ext.P1 cheque was issued for Rs. 2.86,300/- out of which Rs. 86,300/- was towards future interest. Though no specific period was prescribed for repayment of the amount in instalments, from the evidence given by the complainant it could be discerned that the amount was to be paid by the accused within three years. The amount payable on each of the instalment was also not specified. The learned Magistrate found that as on the date when Ext.P1 was presented, the amount shown therein was not due from the accused since part of the amount had already been paid by the accused. Hence, the learned Magistrate acquitted the accused under Section 255(1) Cr.P.C.