VASANTHAKUMAR K AND ORS Vs. VALIATHANNICAL AND ORS

JUDGEMENT

(1.) 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 02/11/2006 in C.C.No.98 of 2004 of the court of the Judicial First Class Magistrate Court, Ranni since the learned Magistrate by the above judgment 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. 2,50,000/- from him and issued Ext.P1 cheque dated 03/11/2003 from the account maintained by the accused but when the said cheque presented encashment dishonoured on the ground that the 'account closed'. According to the complainant, though a formal notice caused to send to the accused and he received the same, no reply was given nor the amount covered by dishonoured cheque has paid and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. The specific defence taken by the accused is total denial of execution of the cheque and the liability alleged.

(3.) With the above allegation the complainant/the appellant herein approached the court of Judicial First Class Magistrate Court, Ranni by filing a complaint alleging the offence under Section 138 of the N.I. Act. The learned Magistrate on taking cognizance for the said offence, instituted C.C.No.98 of 2004 and when the accused appeared the particulars of the offence read over and explained to the accused, who in turn denied the allegation and pleaded not guilty. Consequently, the trial was further proceeded during which PWs.1 to 5 were examined from the side of the complainant and produced Exts.P1 to P11 documents. From the side of the defence DW.1 was examined and produced Ext.D1 document. The trial court finally, on the basis of the available evidence and materials, came to the conclusion that, it is not possible to come to a positive finding that the complainant has pleaded and proved that any transaction between the complainant and accused two months prior to 03/11/2003 and the accused had signed and issued the cheque, at the time of the alleged transaction, to the complainant. Consequently, found that there cannot be a presumption under Section 139 of the N.I. Act and the defence version is more probable. Thus, it is finally found that, the complainant has not succeeded to prove that the accused had issued cheque in question, to the complainant, for the discharge of Rs. 2,50,000/- as alleged by the complainant and accordingly held that the accused has not committed any offence under Section 138 of the N.I. Act and consequently he is acquitted under Section 255 (1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal at the instance of the complainant.