V.KRISHNAKUMAR Vs. SAROJA MENON

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 13.3.2008 in C.C.No.565 of 2003 of the court of Additional Chief Judicial Magistrate-Ernakulam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the complainant is that by the mid of June 2002, the accused approached the complainant for a loan of Rs.3,50,000.00 with a specific understanding that the amount will be returned within three months and accordingly the complainant gave Rs.3,50,000.00 to the accused and simultaneously the accused signed and issued a post dated cheque bearing date as 24.9.2002 for an amount of Rs.3,50,000.00 drawn from the account of the accused with account no.32102 of Canara Bank, Guruvayoor Branch. It is the further case of the complainant that when the said cheque presented for encashment, the same dishonoured for the reason that the account maintained by the accused was closed and though the complainant has sent registered notice to the accused, no payment was made and therefore the accused has committed the offence punishable under section 138 of the NI Act. The complainant himself was examined as PW1 and produced Exts.P1 to P7 documents. The accused herself got examined as DW1 but no document was adduced. The learned Magistrate has found that the accused has got a consistent case right from the issuance of reply notice and the learned Magistrate was refused to believe the complainant that he was holding the amount of Rs.3,50,000.00 in his almirah ever since 1996 onwards to use it for urgent necessity, as the same was not convincing. It has also found by the learned Magistrate that the complainant has failed to prove the execution of Ext.P1 cheque which is a type written one. It is on the basis of the above finding, the learned Magistrate acquitted the accused under section 255 (1) of Cr.P.C.

(3.) LEARNED counsel for the appellant submitted that the complainant has established his case against the accused by adducing cogent evidence mainly through the deposition of PW1 and producing Ext.P1 cheque from his possession. It is the further submission of the counsel that the learned Magistrate erroneously held that the case of the complainant that he was keeping Rs.3,50,000.00 in his possession is not convincing. It is the further submission of the counsel that, as the accused has admitted the signature in Ext.P1 cheque the finding of the court below that the complainant failed to prove the execution of Ext.P1 cheque, is incorrect and liable to be set aside. The learned counsel further submitted that one more opportunity may be given to the complainant to clarify the doubt of the learned Magistrate, as to whether the accused was maintaining an account or not. Thus, according to the learned counsel, the findings of the court below are against the facts, evidence and circumstances involved in the case and are liable to be interfered with.