SHRIRAM TRANSPORT FINANCE CO LTD Vs. SREEKALA

JUDGEMENT

(1.) THE complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 16.1.2012 in C.C.No.213 of 2009 of the court of the Judicial First Class Magistrate-Kayamkulam, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

(2.) THE case of the petitioner is that, the accused availed financial assistance from the complainant company to purchase a vehicle and she failed to repay the instalment amount and a total sum of Rs.38,027/- was due to the complainant and thus on demand, the accused executed Ext.P1 cheque for the said amount, which when presented for encashment dishonoured for want of sufficient of fund and the accused has not repaid the amount inspite of statutory demand and therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, PW1 was examined from the side of the complainant and Exts.P1 to P6 were produced and marked. No evidence adduced from the side of the defence. THE trial court finally found that the accused cannot be said to have issued Ext.P1 cheque to the complainant in discharge of any legally enforceable debt. Accordingly, the accused is acquitted under section 255(1) of Cr.P.C. To challenge the above findings and order of acquittal, the petitioner seeks leave of this Court for filing an appeal.

(3.) THE fact that the endorsements in Ext.P1 cheque are made in different ink, will probabilise the case of the accused that Ext.P1 cheque was obtained at the time of the transaction as security. No convincing explanation is forthcoming from PW1 for the difference in the ink used in Ext.P1 cheque.