K RATHEENDRA BAI Vs. HOUSE S RADHIKA

JUDGEMENT

(1.) The appellant herein, who is the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act preferred the above appeal challenging the judgment dated 25/7/2007 in C.C.No.580 of 2003 on the file of the court of the Judicial First Class Magistrate-III, Thiruvananthapuram as the learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C.

(2.) The case of the complainant is that the accused borrowed a sum of Rs. 3,00,000/- from the complainant on 01/05/2002 and in discharge of the said debt the accused simultaneously issued a post dated cheque bearing date 13/1/2003 and when the said cheque presented for encashment the same was dishonoured, as there was no sufficient fund in the account of the accused to honour the cheque. It is also her contention that at the time of issuing the cheque, there was a live account but the said account was closed by the accused on 17/5/2002 as understood by the complainant from the bank. On receiving the dishonour memo according to the complainant she had caused to send lawyer notice to the accused and though she received the same the amount covered by the dishonour cheque was not paid. Thus, according to the complainant, the accused has committed the said offence.

(3.) During the trial of the case, the complainant herself was examined as PW.1 and produced Exts.P1 to P7. Though no witness is examined from the side of the defence, Ext.D1 was was produced and marked. According to the learned Magistrate, though the defence was denied the execution of the cheque and including signature, no step was taken by the complainant to get an expert opinion about the signature and therefore at the instance of the defence the learned Magistrate inclined to compare the signature seen in the acknowledgment card, vakalath and bail bond with the signature in the cheque and found that there was subtle difference. The learned Magistrate has also stated that he had compared the signature in Ext.P1 cheque with the signature of the accused in the 313 statement and consequently observed and found that there is some difference in signature put in the cheque and consequently found that signature in Ext.P1 is not that of the accused. Thus, finally concluded that the complainant has failed to prove the execution of Ext.P1 cheque by the accused and accordingly the accused is acquitted. It is the above finding and order of acquittal that are challenged in this appeal.