C KAMARAJ Vs. STATE OF KERALA AND ORS

JUDGEMENT

(1.) The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 6.11.2009 in S.T.No.1466 of 2007 of the court of the Judicial First Class Magistrate- IV, Neyyattinkara by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) The case of the complainant is that the accused borrowed Rs. 4 lakhs and towards the discharge of the said liability, the accused issued a cheque dated 18.4.2007, which when presented for encashment, dishonored due to insufficient fund. It is the further case of the complainant that though statutory notice was served on the accused, no amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, the complainant himself was examined as PW1 and Exts.P1 to P6 were produced. From the side of the defence, DW1 was examined, who is none other than the accused and produced Exts.D1 to D3. The trial court, finally, found that the complainant has not proved the execution of Ext.P1 cheque by the accused for any legally enforceable liability and consequently, the accused is found not guilty and accordingly, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

(3.) I have heard Sri. M.R.Sarin Panicker, learned counsel for the appellant. Counsel for the appellant vehemently submitted that the complainant is practising as an Advocate and when he was examined, he had deposed in terms of the complaint and the complainant has produced Ext.P1 cheque from his possession which pertains to the account maintained by the accused, but the learned Magistrate, ignoring the above facts and evidence, came into an erroneous conclusion that the complainant has not proved the execution of the cheque. Thus, according to the counsel, the above finding and order of acquittal recorded by the trial court is liable to be interfered with.