K.N.SUSHAMA Vs. P.ARJUNAN

JUDGEMENT

(1.) THE complainant in two separate proceedings for the offence punishable under Section 138 of the N.I.Act is the appellant in the above two appeals, which are directed against the common judgment dated 4.5.2002 in two separate proceedings i.e., S.T.Nos.30 and 47 of 2000. As the parties to both the above appeals are one and same and the question of facts and circumstances involved is identical, both the appeals are heard together and being disposed of by this common judgment.

(2.) THE case of the complainant is that the accused borrowed Rs.12,500/ - and towards the discharge of that liability, the accused issued Ext.P1 cheque dated 25.6.1997, which is covered by S.T.No.30 of 2000. Similarly, the accused borrowed a sum of Rs.25,000/ - and towards the discharge of such liability, the accused issued another cheque dated 25.6.1997 which is covered by S.T.No.47 of 2000. In both the cases, the further case of the complainant is that when the above said cheques were presented for encashment, the same were dishonoured for want of sufficient fund in the account maintained by the accused and also the case of the complainant is that in spite of service of statutory notice on the accused, he failed to pay the amount covered by the dishonoured cheques and thus, according to the complainant, in both the cases, the accused has committed the offence punishable under Section 138 of the N.I.Act. Thus, in S.T.No.30 of 2000, the complainant herself is got examined as PW1 and produced Exts.P1 to P3 series from the side of the complainant. From the side of the defence, DW1 was examined. Same is the position in S.T.No.47 of 2000. Though the evidences were recorded in the above two cases separately, considering the nature of the transaction alleged, the nature of the evidence adduced and the contention taken, the learned Magistrate decided to dispose of both the cases together and four points are formulated for his consideration and the common question considered is whether the disputed cheques in both the cases are issued in discharge of liability of Rs.12,500/ - and Rs.25,000/ - as alleged. Answering to the above question, in paragraph 10, the learned Magistrate has found that there is absolutely no reliable evidence, materials or circumstances in favour of PW1/the complainant to accept the issuance of two different cheques on the same date for withdrawal from the same account on the same day by the same persons. It is further found that in the absence of reasonable and satisfactory explanation on the side of PW1, in this regard, the case of issuance of two blank signed cheques by the accused assumes much significance. Thus, the trial court finally found that the complainant failed to establish her case and consequently, the accused is found not guilty for the offence under Section 138 of the N.I.Act in both the cases and accordingly, he is acquitted under Section 255(1) of the Cr.P.C. in both the above cases. It is the above finding and order of acquittal challenged in these two separate appeals.

(3.) IN the light of the contentions advanced by the counsel for the appellant and in view of the defence taken by the accused in the trial court, the question to be considered is whether the trial court is justified in its finding and acquitting the respondent/accused and the further question to be considered is whether the appellant has succeeded in making out any ground to interfere with the order of acquittal recorded by the trial court in favour of the accused.