K.K. ANIL KUMAR Vs. C.J. JOSEPH

JUDGEMENT

(1.) APPELLANT filed a complaint against the contesting respondent/accused before the Judicial First Class Magistrate Court -II, Thrissur alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, "the Act"). As per the impugned judgment, the learned trial Judge acquitted the respondent finding that the case propounded by him was more probable than the case set up by the appellant/complainant. Aggrieved by that finding and consequent acquittal, the complainant has come up before this Court with an appeal under Section 378(4) of the Code of Criminal Procedure.

(2.) HEARD the learned counsel for the appellant and the learned Public Prosecutor. There is no representation for the contesting respondent/accused. I have carefully perused the records.

(3.) DW 1, the accused, deposed that he had financial dealings with a finance enterprise by name Kovilakam Finance. Admittedly PW 1 was one of the directors of that concern. DW 1 would put forward a case that three cheques were given to the Kovilakam Finance signed by himself and his wife and one of such cheques was misused for filing this complaint. DW 1 was subjected to cross -examination. There was no evidence produced to show that he had any dealings with Kovilakam Finance. That apart, he could not produce any document to show either he or his wife issued cheques to Kovilakam Finance. To a specific question whether he took any action against Kovilakam Finance for the alleged misuse of the cheque, DW 1 said that he had not taken any steps. It is true that persons dealing in such business charge exorbitant rate of interest. But, in the absence of any reason to find that the appellant misused a cheque issued to Kovilakam Finance for his personal benefit, I am unable to accept the reasoning of the court below that the case of the accused was more probable than that of the appellant/complainant. The scope of presumptions under Secs. 118 and 139 of the Act would render support to the case of the appellant. Therefore, I find that the acquittal of the accused is not legally justifiable.