S M SHETTY Vs. RATHI AND ORS

JUDGEMENT

(1.) This appeal on special leave has been preferred by the complainant in C.C.No.339 of 2005 of the Judicial First Class Magistrate's (Additional Munsiff's) Court, Kasaragod, challenging the impugned judgment of acquittal under Section 255 (1) of the Code of Criminal Procedure.

(2.) The case before the court below is, as a result of a private complainant filed by the appellant herein as complainant, against the first respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act. The case of the appellant is that the first respondent, in discharge of her liability to pay an amount of Rs. .1,75,000/- to the appellant, issued Exhibit P1 cheque, which on presentation, returned dishonoured for insufficiency of funds in the account of the first respondent. A statutory notice as contemplated under Section 138 (b) of the Negotiable Instruments Act, even though issued, had returned as unclaimed. As the amount has not been paid, the complaint has been filed.

(3.) On the side of the appellant, PW1 was examined and Exhibits P1 to P8 were marked. On the side of the first respondent, DW1 and DW2 were examined and Exhibits D1 to D3 were marked. The court below found that the appellant has failed to prove that Exhibit P1 cheque was issued in discharge of a legally enforceable debt or liability and further found that there is no sufficient evidence to prove that Exhibit P1 cheque was presented at the bank and the same was dishonoured through Exhibits P2 and P3.