MUTHOOT LEASING AND FINANCE LTD Vs. JABEER NAZIB

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 24.5.2010 in S.T.No.12 of 2009 of the court of the Chief Judicial Magistrate-Palakkad, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

(2.) THE case of the petitioner is that, being a company which is engaged in hire purchase of vehicle on loan basis, the complainant granted loan in favour of the brother of the accused, one T.Basheer, and the accused stood as guarantor and as per the hypothecation agreement, the loanee have to repay the loan amount by way of instalments and the accused agreed to close the loan by paying the outstanding due as on 1.9.2008. Since all the cheques which issued earlier to the complainant were bounced, towards the settlement of total due amounts, the accused issued a cheque for an amount of Rs.1,10,004/- and the said cheque when presented for encashment, dishonoured and the accused has not paid back the amount inspite of a statutory notice served on him and therefore, according to the petitioner/complainant, the accused has committed the offence punishable under section 138 of NI Act. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P12. No evidence either oral or documentary adduced from the side of the defence. THE learned Magistrate has finally found that, Ext.P2 cheque was not one issued to discharge any liability of the accused as on the date of Ext.P2 and also found that the material ingredients to attract an offence punishable under Section 138 of NI Act are not established and finally the accused is acquitted under section 255(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged, for which leave of this Court is sought for under section 378(4) of Cr.P.C.

(3.) ON the other hand, the learned counsel for the respondent submitted that the total amount allegedly availed by the accused is only Rs.2,20,000/-. Whereas as per the evidence of PW2, an amount of Rs.1,90,000/- was repaid and beside that, an amount of Rs.1,27,000/- was also get credited into the account of the complainant when the vehicle was repossessed and sold. Thus according to the learned counsel for the respondent, no amount is due.