RAVEENDRAN S/O GANGADHARAN Vs. K SAROJINI

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 11/10/2004 in Summary Trial Case No.1100 of 2001 of the court of the Judicial Magistrate of the First Class, Ottapalam, 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 and her son one Krishnakumar made believe the complainant and his uncle that they will arrange visa for them and thereby received Rs. 1,46,000/ - from the complainant but the visa was not arranged as promised. Thus, when the complainant demanded back the money, the accused issued Ext.P1 cheque dated 16/12/2000 for an amount of Rs. 1,10,000/ - which, when presented for encashment was dishonoured for want of sufficient fund in the account maintained by the accused and according to the complainant though he had caused to send a statutory notice to the accused, no amount was 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 got examined as PW.1 and produced Exts.P1 to P5 documents. No evidence, either oral or documentary, was produced from the side of the defence. Based upon the evidence and materials and the contention advanced, the learned Magistrate has framed three points for his consideration. The first point considered was whether the accused had issued Ext.P1 cheque in favour of the complainant for the discharge of the debt as alleged in the complaint and the second point was whether the complainant presented the cheque within the stipulated time and whether the cheque was bounced due to the insufficiency of the funds in the account maintained by the accused and those points found in favour of the complainant. The third point considered by the learned Magistrate was whether the complainant issued written notice informing the bouncing of the cheque within the stipulated time and whether the accused failed to repay the amount as alleged by the complainant and this point is found against the complainant and in favour of the accused. Accordingly, it was held that, in the present case, the complainant has not shown that, notice of demand, as required under Section 138(b) of N.I. Act, was served on the accused and therefore no offence under Section 138 of the N.I. Act will lie. Consequently, the accused has been found not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above finding and the consequent acquittal that are challenged in this appeal at the instance of the complainant.

(3.) I have heard Sri.Santheep Ankarath, learned counsel for the appellant and Sri.Biju Abraham, learned counsel for the respondent.