INDIRA MURALI Vs. STATE OF KERALA

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 she is aggrieved by the order dated 18/02/2009 in S.T.No.130 of 2008 of the court of the Judicial Magistrate of the First Class-II, Mavelikara 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 an amount of Rs.3,00,000.00 was due from the accused to the complainant as per loan transaction and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 15/12/2006 for Rs.3,00,000.00 which, when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and therefore a notice was served on the accused demanding him to pay the amount covered by the dishonoured cheque, but no payment was made and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant herself was examined as PW.1 and produced Exts.P1 to P5 documents. No evidence, either oral or documentary, was produced from the side of the defence. The trial court after having considered the entire evidence and materials has found that the sole testimony of PW.1 cannot be accepted to hold that a debt of Rs.3,00,000.00 was existing between PW.1 and the accused. The complainant is not entitled to the presumption of the existence of debt or legal liability. It is also found that PW.1 was not able to prove the execution of Ext.P1 cheque. It is on the basis of the above findings that the trial court held that the complainant has miserably failed to prove that Ext.P1 was issued for the discharge of any legally enforceable debt by adducing independent corroborative evidence and accordingly, further found that the accused has not issued Ext.P1 cheque to discharge the legally enforceable debt for Rs.3,00,000.00. Consequently, the trial court found, that the accused is not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and the order of acquittal that are challenged in this appeal.

(3.) THE learned counsel for the appellant vehemently submitted that the accused has admitted the execution particularly the signature in Ext.P1 cheque and therefore the trial court ought to have held that the complainant is entitled to get presumption under Sections 139 and 118(a) of the N.I. Act. But the learned Magistrate went wrong in holding that the complainant has failed to prove the transaction and the execution of the cheque. Thus, according to the learned counsel, the finding of the court below is liable to be interfered and the orders of acquittal recorded in favour of the accused are liable to be reversed and the accused has to be convicted.