MALANKARA PLANTATIONS LIMITED Vs. S ABDUL SAMAD

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 as it is aggrieved by the order dated 31/10/2008 in S.T.No.1861 of 2006 of the court of the Judicial Magistrate of the First Class-I, Kottayam 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 a distributor of packeted tea, a product of the complainant company, from its plantation and an amount of Rs.56,341/- was due to the company from the accused connected with the above transaction and towards the discharge of the said liability the accused issued Ext.P2 cheque dated 03/01/2006 for Rs.56,341/- which when presented for encashment dishonoured due to "insufficiency of fund" in the account maintained by the accused and though a notice was served on the accused demanding the dishonoured cheque amount, no payment was made and therefore the accused has committed offences punishable under Section 138 of the N.I. Act. During the trial of the case PW.1 was examined at the side of the complainant and Exts.P1 to P10 were marked. Though no witness was examined, D1 was marked from the side of the defence. The trial court finally found that the complainant could not prove the case against the accused beyond reasonable doubt and accordingly found that the accused is not guilty and thus he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

(3.) THE learned counsel for the appellant vehemently submitted that the trial court is wrong in its finding and accepting the case of the defence that cheque was given as a security. It is the submission of the learned counsel for the appellant that the accused volunteered to contact the office of the complainant by bringing a filled up cheque and signed on it before PW.1 and handed over the same towards the discharge of the liability. But the learned Magistrate, though there is no evidence to show that Ext.P2 cheque was given as a security, proceeded to accept the case of defence and erroneously held the complainant could not prove the case against the accused beyond reasonable doubt. On the other hand the counsel for the respondent submitted that the complainant has miserably failed to prove the due execution of Ext.P2 cheque and therefore the learned Magistrate is correct in its finding and therefore no interference is warranted.