C.RADHAKRISHNA PILLAI Vs. S.VASUDEVAN PILLAI

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 7.8.2007 in S.T.No.14 of 2006 of the court of Judicial First Class Magistrate-II, Karunagappally, 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 the accused is one of his friends and also his near relative, and on 1.9.2001, the accused approached him and borrowed a sum of Rs.3 lakhs and at the time of borrowing the said amount, the complainant was told that the amount will be repaid on 2.11.2001. According to the complainant, on 2.11.2001, the accused approached him and informed that the amount could not be arranged and in discharge of that liability, the accused had issued a post dated cheque bearing date 20.11.2001. According to the complainant, when the above cheque presented for encashment, the same returned dishonoured for the reasons "funds insufficient" and "payment stopped by drawer". It is the further case of the complainant that, though a formal statutory notice was sent to the accused, instead of paying the amount, he sent a reply raising false contentions. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P10 were marked. From the side of the defence, Dws.1 to 4 were examined and Exts.D1 to D11 were produced. Beside the above, X1 to X2(c) are also marked as court exhibits. The trial court, after an elaborate consideration of the entire evidence and materials, has found that in this case, there is nothing to come to a conclusion that Ext.P1 is supported by consideration or else Ext.P1 was not given in consideration for a legally enforceable debt or liability. It is also found that the accused in this case had successfully rebutted the presumption. It is the above finding and order of acquittal challenged in this appeal.

(3.) ON the other hand, the counsel for the respondent submitted that the cheque was dishonoured not only for the reason of insufficiency of fund but also for the reason that there was a stop memo issued by the drawer- the respondent/accused. The trial court has also found that the accused has succeeded in making out a probable case and thereby rebutted the presumption under section 139 of the NI Act and therefore according to the counsel, there is no scope for any interference by this Court in the above appeal.