ANTONY AUGUSTINE 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 since he is aggrieved by the judgment dated 5.5.2012 in S.T.No.1200 of 2009 of the court of Judicial First Class Magistrate-Pala, 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 a sum of Rs. 1 lakh from him and towards the discharge of the said liability, the accused executed and issued Ext.P1 cheque dated 6.1.2009, which when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused and the accused has not repaid the amount in spite of service of statutory notice on him and therefore the accused has committed the offence punishable under section 138 of the N.I. Act.

(3.) During the trial of the case, the complainant himself was examined as PW1 and another witness was examined as PW2, and produced Exts.P1 to P7 documents from the side of the prosecution. From the side of the defence, the accused mounted to the box and gave evidence as DW1 and also produced Ext.D1 series. The trial court, after an elaborate consideration of the entire evidence and materials found that the complainant has miserably failed to prove that there was a legally enforceable debt and Ext.P1 cheque was issued to the complainant towards the discharge of such liability, but on the other hand, from the available materials, the case of the accused is more probable. On the basis of the above finding, the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which leave of this Court is sought for.