LEELA SUKUMARAN D/O BHAVANI AMMA Vs. PRATHEEPKUMAR SON OF SREEDHARA PANICKER PUTHIYARA PUTHALATTU PARAMBIL SREE NILAYAM KOZHIKODE TALUK

JUDGEMENT

(1.) THE complainant in C.C. 434 of 2001 on the file of the Judicial Magistrate of the First Class - III, Neyyattinkara, is the appellant. She prosecuted the first respondent before the trial court alleging offence under Section 138 of the Negotiable Instruments Act with a plea that the first respondent borrowed a sum of Rs. 12 lakhs and in discharge of that liability, Ext.P1 cheque was issued. When Ext.P1 was sent for collection, it was returned dishonoured for want of sufficient funds. Despite the notice, the liability was not discharged; but a false reply was caused. THE first respondent pleaded not guilty when the particulars of the complaint were read over and explained to him on his appearance in pursuance to the process issued. THErefore, he was sent for trial. On the side of the appellant, she was examined as PW.1 and Exts.P1 to P8 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the first respondent denied the incriminating evidence and further raised a case that he had borrowed a sum of Rs. 15,000/- from one Udayakumar, who was examined as DW.1 and at the time of borrowal, a blank cheque was given and that the liability was later discharged and that the appellant somehow or other got Ext.P1 from the possession of DW.1 and that DW.1 did not return the cheque stating that it was missing somewhere. Misusing that cheque, the prosecution was launched.

(2.) IN support of the defence DWs 1 to 5 were examined of whom DW.5 is the first respondent. Exts. D1 to D7 were marked. The learned magistrate, on appraisal of the evidence, arrived at a finding that the appellant had failed to prove the loan transaction as well as the issuance of the cheque. On the other hand, the defence version was believed. Consequently, the first respondent was acquitted under Section 255(1) of the Code of Criminal procedure. Assailing the above judgment of acquittal, this appeal is preferred.

(3.) THE first respondent is admittedly a sales man at the show room of Batta. According to the appellant, he is well acquainted and therefore, she had parted such a huge amount without any document. But, in cross examination, the appellant had to confess that she is not aware of the name of the father of the appellant or any other member except one brother. THE first respondent is belonging to Kozhikode. Whereas the appellant is belonging to Neyyattinkara. It is rather difficult to believe that the appellant lent such a huge amount to the first respondent who belongs to a distant place without any document. Adding to that, as I mentioned earlier, there is no mention about the date of transaction. THErefore, there is lack of pleadings to the effect that the cheque was issued for enforceable liability. Unless it is pleaded and proved that there was liability and it was within three years of the issuance of the cheque, it cannot be said that there is enforceable liability for the discharge of which the cheque was issued. In this case, there is no credible evidence regarding the liability or that it was an enforceable liability. In the above circumstances, I ind no merit in the appeal. In the result, this appeal is dismissed.