C G CHENTHAMARAKSHAN Vs. K NARAYANASWAMY

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 as he is aggrieved by the order dated 28.02.2006 in Crl.Appeal No.553 of 2004 of the Court of Sessions, Palakkad by which the learned Sessions Judge acquitted the accused.

(2.) THE case of the complainant is that the accused borrowed an amount of Rs.3 lakhs on 20.8.2002 and towards the discharge of the said liability, the accused issued Ext.P1 cheque which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused and subsequently though the appellant/complainant issued a notice to the accused and thereby the accused committed the offence punishable under Section 138 of the N.I Act. With the above complaint, the appellant herein approached the court of Judicial First Class Magistrate-1, Palakkad by filing a complaint and cognizance was taken for the said offence and during the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents. DW1 was examined from the side of the defence and marked Ext.D1 as defence exhibit. After having considered the entire evidence and materials, the learned Magistrate has found that the complainant is able to prove before the court that the accused has issued Ext.P1 cheque to discharge his liability and, accordingly, accused is found guilty for the offence under Section 138 of the N.I Act and thus he is convicted under Section 255(2) of Cr.P.C and on such conviction the accused is sentenced to undergo simple imprisonment for a period of 12 months and directed to pay compensation of Rs.3 lakhs to the complainant under Section 357(3) of Cr.P.C and default to pay compensation, the accused is directed to undergo simple imprisonment.

(3.) THE learned counsel for the appellant vehemently submitted that in the complaint it was specifically pleaded by the complainant that in spite of the service of notice on the respondent/accused, the amount was not paid off. But, unfortunately due to an inadvertent omission, the complainant while examining, has failed to depose that the amount was not repaid after receiving the notice. It is also the submission of the learned counsel that the accused/respondent has no case that they have discharged the liability connected with the transaction. It is also pointed out by the learned counsel that in the appeal no ground is urged by the accused/respondent that the complainant did not adduce evidence to the effect that no payment was made after service of notice on the accused. Thus it is the submission of the learned counsel for the appellant that the prosecution for an offence under Section 138 is a semi civil proceedings and hence the matter may be remitted back to the trial court giving opportunity to both the parties to adduce evidence and to have a decision thereon.