KN SUNILKUMAR Vs. ABDULRAHIMAN AK ,AMBALAKKANDY HOUSE

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 29.7.2008 in STC.No.3967 of 2005 of the court of Judicial First Class Magistrate-Thalassery, 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 borrowed a sum of Rs.1,50,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque which when presented for encashment dishonoured and the amount covered by the dishonoured cheque is not paid inspite of the statutory notice and thus according to the complainant, the accused has committed the offence punishable under section 138 of NI Act. During the trial of the case PW1, the power of attorney holder of the complainant, was examined and produced Exts.P1 to P8, among which Ext.P1 is the cheque and Exts.P2 and P3 are the documents connected with the dishonour of cheque and Exts.P4 to P7 are the documents connected with the demand and Ext.P8 is the power of attorney given in favour of PW1 by the complainant. THE trial court after considering the evidence and materials found that the complainant has miserably failed to prove the transaction, the liability as well as the issuance of the cheque. Accordingly, the accused is acquitted under section 255(1) of Cr.P.C. It is the above order of acquittal challenged in this appeal.

(3.) IN the light of the arguments advanced by the learned counsel for the appellant and in the light of the findings of the court below on the basis of the available materials and evidence on record, the question to be considered is whether the appellant has succeeded in making out a prima facie case so as to entertain this appeal any further and to interfere with the order of acquittal recorded by the learned Magistrate. Admittedly, the complainant did not mount to the box and no evidence is adduced, and the prosecution was conducted through PW1, who is the power of attorney holder of the complainant. The specific defence set up by the accused is to the effect that he has no acquaintance with the complainant or connection and he is not indebted to the complainant. According to him, the cheque and other documents belonged to him were stolen from his car and he had preferred a complaint to the Station House Officer, Thalassery, and the same being investigated. According to the defence, the complainant is the culprit and that is why he avoided to appear before the court below. PW1 - the power of attorney holder of the complainant, was not in a position to depose anything connected with the transaction claimed by the complainant. The learned Magistrate has found that the financial capacity of the complainant was disputed by the accused and PW1 is not in a position to say whether the complainant is having a bank deposit, or property in his name etc. Therefore, the learned Magistrate concluded that PW1 has no knowledge regarding those aspects, eventhough he claimed to have acquaintance of a reasonable period with the complainant. On the basis of the above evidence and materials, the learned Magistrate has found that the case set up by the complainant that he had lend a sum of Rs.1,50,000/- to the accused and that Ext.P1 is issued towards the said liability, are not stand proved. The learned Magistrate has also found that the alleged borrowal does not stand proved for the sole reason that the financial capacity of the complainant to give out such a sum does not stand proved. The above reasonings, according to me, are correct and are based upon the evidence and materials on record. The appellant has no case that the learned Magistrate has over-looked any evidence or materials in favour of the complainant. The reasonings given by the learned Magistrate cannot be treated as perverse or illegal so as to interfere with the findings of the court below and the order of acquittal recorded. Therefore, according to me, even if this appeal is entertained, there is not even a remote scope to interfere with the findings of the court below and order of acquittal. IN the result, according to me, the appellant is miserably failed to make out a prima facie case so as to interfere with the findings of the court below and order of acquittal recorded in favour of the complainant. Accordingly, this appeal is dismissed as the same is devoid of any merit.