T.K.SHEEBA Vs. SUJATHA

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 she is aggrieved by the judgment dated 18.7.2006 in C.C.No.104 of 2004 of the court of Judicial First Class Magistrate-IV, Kozhikode, 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 towards the discharge of a legally enforceable debt, the accused executed and issued Ext.P1 cheque, for an amount of Rs.1,76,500.00, which when presented for encashment dishonoured for the reason, 'funds insufficient'. It is the further case of the complainant that, though statutory notice was served on the accused demanding the repayment of the amount covered by the dishonoured cheque, no payment was made and 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, the complainant was examined as PW1 and produced Exts.P1 to P6(b) documents. Though no witness was examined from the side of the defence, Ext.D1 was marked. After considering the entire evidence and materials, the learned Magistrate has found that Ext.P1 cheque was not issued to discharge any legally enforceable debt. On the other hand, it has found in favour of the accused that the defence was able to prove that Ext.P1 cheque has not been issued for the discharge of a legally enforceable debt. Accordingly, the accused was acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal.

(3.) LEARNED counsel for the appellant vehemently submitted that, the observation and findings of the court below regarding the absence of averments in the complaint are absolutely incorrect and unwarranted. According to the learned counsel, the details of the debt need not be pleaded in the complaint. It is also the submission of the learned counsel that, when the complainant was examined as PW1, she had adduced evidence with respect to the transaction, under which Ext.P1 cheque was executed and issued in favour of the complainant, but the learned Magistrate has failed to appreciate the said evidence of the complainant and went wrong in holding that the complainant has failed to substantiate the specific and particular debt set up by the complainant against the accused. It is also the submission of the counsel that, the accused has admitted the execution and issuance of the cheque and therefore the learned Magistrate is wrong in not extending the presumption under section 139 of the NI Act in favour of the complainant. Thus, according to the learned counsel, the judgment of the trial court is liable to be interfered with and the order of acquittal is liable to be set aside.