SHRIRAM INVESTMENT LTD Vs. BALAMANI,THAZHEKUNNIYIL

JUDGEMENT

(1.) CHALLENGING the judgment dated 19/6/2006 in C.C.No.294 of 2003 of the court of Judicial First Class Magistrate Court -IV, Kozhikode, the complainant therein preferred this appeal, as they are aggrieved by the above judgment by which the learned Magistrate acquitted the accused, who faced the prosecution for the offence punishable under Section 138 of the N.I. Act.

(2.) THE case of the complainant is that, the complainant/company engaged in hire purchase business and extending such facility to one P.Saithalavi and connected thereto, he was entrusted with vehicle bearing registration No.KL -3E/4955 in pursuance to an agreement executed by the said P.Saithalavi, for which the accused was a guarantor. Thus, according to the complainant, the liability of said P.Saithalavi is joint and several. According to the complainant, when the principle debtor committed default in the payment of installments and when a huge amount became due, formerly informed the accused being the guarantor about the non -payment of installment and requested her to pay the amount and clear the arrears. Thus the accused undertook the liability and issued Ext.P2 cheque dated 24/3/2003 for an amount of Rs.1,10,000/ - towards the final settlement of the account. According to the complainant, when the said cheque was presented for encashment, the same was returned dishonoured for the reason "funds insufficient". Consequently, the complainant caused to issue registered lawyer notice to the accused. But the same was returned unserved for the reason that 'door closed' and thereafter the accused has not paid the amount and thus 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 Exts.P1 to P6 were marked. From the side of the defence, though no witness was examined, Exts.D1 and D2 documents were got marked through PW.1. The trial court finally found after considering the entire evidence and materials on record that the prosecution has failed to prove that the accused has issued the cheque to discharge any legally enforceable debt and accordingly found the accused not guilty of the offence under Section 138 of the N.I. Act and consequently she is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that are challenged in this appeal at the instance of the complainant therein.

(3.) THE learned counsel for the appellant vehemently submitted that the trial court is wrong in acquitting the accused for the sole ground, i.e., failure on the part of the complainant in producing the hire purchase agreement and simply acting upon Exts.D1 and D2 produced on behalf of the defence. According to the learned counsel, the evidences adduced by the defence are not strong enough to acquit the accused. It is also the submission of the learned counsel for the appellant by remanding the matter to the trial court one more opportunity may be given to the complainant and produce the necessary evidence to substantiate the case of the complainant.