BALAN C Vs. PREETHA N P

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 5-8-2011 in S.T.C. No.12515 of 2008 of the court of Judicial First Class Magistrate III, Kannur, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. The case of the complainant is that, the accused borrowed a total sum of ' 5 lakhs from the complainant during the month of August 2006 and issued a post dated cheque dated 9-10-2006 towards the discharge of the said liability and when the said cheque presented for encashment, the same was returned dishonoured for the reason, 'funds insufficient' in the account maintained by the accused and the accused has not repaid the dishonoured cheque amount, inspite of the statutory notice served on the accused and thus according to the complainant, the accused has committed offence punishable under section 138 of the N.I.Act.

(2.) With the above allegation, by filing a complaint, the complainant approached the court of Judicial First Class Magistrate I, Kannur, wherein cognizance was taken and instituted S.T.C. No. 269 of 2007 and subsequently, when the accused appeared before the court in pursuance to the process issued, the plea of the accused was recorded. Subsequently, the trial was proceeded further and the complainant was examined as P.W. 1 and Exts. P-1 to P-5 were marked. After closing the prosecution evidence, the accused was examined under section 313 of Cr.P.C. and accordingly, her statement was recorded under Section 313. That being the procedural position of the trial, the case was made over to the court of Judicial First Class Magistrate III, Kannur, where the trial of the case was resumed and started defence evidence, during which DW1 was examined and Exts.C-1, C-1 (a) and C-1(b) were marked. Finally, the present trial court after having considered the evidence and materials, came into a conclusion that accused has not committed the offence punishable under Section 138 of the N.I. Act and accordingly she is acquitted under section 255(1) of Cr.P.C. It is the above judgment of the trial court and the findings and order of acquittal that are challenged in this appeal.

(3.) I have heard Sri P. P. Ramachandran and Sri P. M. Habeeb, learned counsels for the appellant and the respondent respectively, and I have also perused the judgment of the trial court.