MATHEW K.M. Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant is the complainant in C.C. No.4/05 on the file of the Judicial First Class Magistrate Court II, Kasargod. The aforesaid complaint was submitted by him against 1st respondent herein alleging offence punishable under Section 138 of Negotiable Instruments Act.

(2.) The case of the appellant is that, towards repayment of the amount which the 1st respondent borrowed from the appellant herein, a cheque dated 29.01.2005 was issued by the 1st respondent for an amount Rs.3 lakhs. Upon presentation of the said cheque with his bank, the same was returned unpaid on 29.01.2005 with a memo containing an endorsement "funds insufficient ". The dishonour of the said cheque was intimated to the 1st respondent by way of a registered lawyer notice dated 02.02.2005 and calling upon him to pay the amount within 15 days. The notice was served upon him on 03.02.2005 and the 1st respondent sent reply raising untenable contentions. The complaint was submitted in the above circumstances.

(3.) In support of the averments in the complaint, the appellant got himself examined as PW1 and Exts.P1 to P6 were marked. After completion of prosecution evidence, the 1st respondent was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the trial were put to him. He denied the said materials and contended that the 1st respondent never had any transaction with the appellant herein and he denied the execution of the said cheque in favour of the appellant. It is stated by him that he was a subscriber of chitty conducted by One Joy Orathel under the name and style of "Athira Finance " wherein he was a subscriber of a chitty for an amount of Rs.90,000/-. The aforesaid chitty was bid by the 1st respondent in auction in the year 1997 and at the time of release of the said amount, the said Joy Orathel collected three signed blank cheques and a signed blank stamp paper worth Rs.50,000/- from the 1st respondent. Later, he paid the said amount, but he did not return the said cheque leaves and the stamp paper. It was contended that the present complaint is submitted by the appellant by misusing one of the cheques collected by the said Joy Orathel. As defence evidence, the 1st respondent got himself examined as DW1 and Exts.D1 to D8 were marked.