MEENA MOHAN Vs. RAVEENDRANPILLAI

JUDGEMENT

(1.) AGGRIEVED by the judgment dated 27/6/2007 in C.C.No.1605 of 2004 of the court of the Judicial First Class Magistrate -I, Kollam, the complainant therein preferred this appeal as the court below acquitted the accused, who faced the prosecution for the offence punishable under Section 138 of the N.I. Act at the instance of the complainant.

(2.) THE case of the complainant is that on 28/2/2004, the accused issued a cheque for Rupees Seven lakhs in favour of the complainant towards the discharge of his liability due to the complainant and when the said cheque presented for encashment, it was dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice sent in his address. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. To substantiate the above allegation the complainant himself got examined as PW.1 and produced Exts.P1 to P5 documents. From the side of the defence no witness was examined. Exts.X1 to X3 were marked. The trial court finally found that the complainant did not succeed in establishing that the cheque in question was executed and issued by the accused and also failed to show passing of consideration connected with Ext.P1 cheque, particularly in view of the fact that on the date of the alleged transaction there was no fund in the account of the complainant. Consequently the accused is found not guilty and thus he is acquitted under Section 255(1) of Cr.P.C. This appeal is directed against the above finding and order of acquittal.

(3.) THE learned counsel for the appellant vehemently submitted that the findings of the court below that, the complainant failed to prove the execution of cheque is incorrect since the cheque in question dishonoured not for the reason that the cheque bear different signature and not of the accused and therefore the above finding of the court below is incorrect. Another contention advanced by the learned counsel is that, in support of the finding of the learned Magistrate as there was no passing of consideration, the learned Magistrate heavily relied upon Exts.X1 to X3 documents which were not adduced in terms of Section 294 of Cr.P.C. and therefore those documents cannot be looked into. Therefore, according to the learned counsel the finding of the court below is incorrect and liable to be interfered and the order of acquittal deserves to be reversed.