UDAYA KUMAR Vs. BINOY VARGHESE

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 21.03.2006 in C.C.No. 1 of 2001 of the court of Judicial First Class Magistrate- III, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 255 (1) of the Cr.P.C.

(2.) THE caseof the complainant is that the accused due to urgent need approached the complainant for a loan of Rs. 3,00,000/- and the complainant has arranged and paid the same to the accused and the accused issued a cheque dated 16.08.2000. When the said cheque presented for encashment it was dishonoured. Though notice was sent to the accused, he did not repay the dishonoured cheque amount. THErefore, according to the complainant, the accused had committed the offence punishable under Section 420 IPC and 138 of Negotiable Instruments Act. THE court took cognizance only for the offence punishable under section 138 of Negotiable Instrument Act. During the trial of the case, complainant himself was examined as Pw1, Exts.P1 to P5 were marked. THE specific defence taken by the accused is that his brother one David Varghese and Kesava Bhuvanachandran brother-in-law of the complainant entered into a chitty transaction and accused had issued a cheque to his brother for furnishing security and thus his brother gave the same to Bhuvanachandran. According to the accused the Ext. P1 cheque is one among the signed blank cheques issued to the said Bhuvanachandran. From the side of the defence Exts. D1 to D3 were produced and marked. THE trial court finally found that the complainant has not succeeded in proving the case against the accused and accordingly, the accused fount not guilty and he is acquitted under Section 255(1) of Cr.p.c. This is the finding and order of acquittal challenged in this appeal.

(3.) IN the light of the arguments advanced by the learned counsel appearing for the appellant and in the light of the evidence and materials referred to by the learned Magistrate in the impugned judgment the question to be considered is Whether the appellant has succeeded in making out a prima facie case and whether order of acquittal recorded by the learned Magistrate is liable to be interfered on the ground that the findings of the court below is perverse and illegal?