BHOOPRABHA FINANCE, KUNNAMKULAM Vs. SUMITHA

JUDGEMENT

(1.) THE above appeal is directed against the judgment dated 08/01/2002 in S.T.No.2387 of 1999 of the court of Judicial First Class Magistrate, Kunnamkulam. The present appellant is the complainant in the above case which is instituted for the offence punishable under Section 138 of the N.I. Act, but the learned Magistrate acquitted the accused, who faced the prosecution for the above offence.

(2.) ACCORDING to the complainant, on 16/1/1997 the accused borrowed a sum of Rs.34,000/ - from the complainant firm after executing a promissory note and when the amount was demanded, the accused issued Ext.P5 cheque dated 08/03/1999, which when presented for encashment, dishonoured stating that "funds insufficient" and thereafter though a registered lawyer notice was served on the accused asking to pay the amount, no money was paid and therefore according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and produced Exts.P1 to P15 documents. Though no witness was examined from the side of the defence, Exts.D1 to 3 were produced. The trial court finally found that, the accused has rebutted the presumption and the complainant has failed to establish that Ext.P5 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. Consequently, the accused is found not guilty and he is accordingly acquitted under Section 255(1) of Cr.P.C. Challenging the above finding and order of acquittal, the complainant therein preferred this appeal.

(3.) THE learned counsel for the appellant vehemently submitted that the trial court came into its finding on the premises that Ext.D1 is connected with the present transaction claimed by the complainant which approach is factually incorrect since Ext.D1 is connected with another transaction in which the accused has cleared the entire liability. It is also the submission of the learned counsel that Exts.P3 and P4 and Exts.P13 and P14 would show the transaction and liability of the accused, but ignoring the above documents the trial court erroneously found that the complainant has failed to establish that Ext.P5 cheque was issued by the accused to the complainant in discharge of a legally enforceable debt. So, according to the learned counsel, the finding of the trial court is incorrect and interference of this Court is absolutely necessary.