SAJITHKUMAR V. Vs. PREMLAL

JUDGEMENT

(1.) Complainant is in appeal. His complaint filed under S.138 of NI Act ended in acquittal. Ext. P1 cheque dated 30/04/1999 was for Rs.4 lakhs. The case of the complainant is that he had lent Rs.4 lakhs to the accused in December, 1998 and when he requested for return of the amount the accused issued Ext. P1 cheque dated 30/04/1999. When the cheque was presented for encashment, it was dishonoured due to insufficiency of fund. On receipt of the memo, statutory notice was sent. The accused failed to pay the amount. Hence, the complaint was filed.

(2.) Before the Court below, the complainant was examined as PW 1 and Exts. P1 to P5 were marked. Ext. D1 the certified copy of the deposition of PW 1 in CC No. 1376/2000 of JFCM - I, Ernakulam was marked on behalf of the defence. Learned Magistrate found that there is no legal evidence to prove the transaction alleged by the complainant. It was also found that the evidence given by PW 1 before the Court is inconsistent with his case in CC No. 1376/2000. Hence, the accused was acquitted.

(3.) Learned counsel for the complainant would submit that the accused does not dispute the fact that Ext. P1 bears his signature and if so, the burden is on the accused to discharge the presumption under S.139 of NI Act. No reply was also sent by the accused refuting the allegations made in the statutory notice and as such, the Court below should have accepted the case of the complainant. This submission is resisted by the learned counsel for the accused pointing out the irreconcilability of the case advanced by the complainant. While the case of the complainant in the complaint and in the examination in chief is that the accused had borrowed Rs.4 lakhs from him and it was to discharge that debt Ext. P1 was issued, during cross examination it was admitted by PW 1 that he had deposed before Court in another case - CC No. 1376/2000 that the accused had borrowed Rs.4 lakhs from one Ashokan who is his friend and that since the money was not paid by the accused to Ashokan mentioned above, he (PW 1) had to give a sum of Rs.4 lakhs to Ashokan which was the amount payable by the accused to Ashokan and it was to discharge that debt Ext. P1 was issued. CC No. 1376/2000 was filed by the complainant against the accused alleging that the accused had committed cheating. Whatever that be, the case set up in the complaint and given by the complainant in chief examination that he had lent Rs.4 lakhs to the accused in December, 1998 cannot be true in the light of the admission made by PW 1 in Ext. D1 the deposition given by him in CC No. 1376/2000.