SULOCHANA DEVI Vs. BABURAJ.V

JUDGEMENT

(1.) This appeal is directed against the judgment dated 11.11.2010 in Crl.A.No.680 of 2006 passed by the Court of Additional Sessions Judge (Fast Track Court -III), Thiruvananthapuram. As per the impugned judgment the Appellate Court reversed the conviction and also the sentence imposed on the first respondent/accused in a prosecution for commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The appellant herein was the complainant and the first respondent herein was the accused in C.C.No.228 of 2004 on the files of the Court of Judicial First Class Magistrate -V (Special Court for Marklist Cases), Thiruvananthapuram. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status in this appeal.

(2.) The appellant filed a private complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act against the first respondent. Her case was that the first respondent borrowed an amount of 75,000/ - from her and in discharge of the said legally enforceable debt he issued Ext.P1 cheque. When Ext.P1 cheque was presented for encashment it was bounced owing to paucity of funds in the account maintained by the first respondent. Thereupon, statutory notice was issued within the statutorily prescribed period to the first respondent intimating him of the dishonour of the cheque and also calling upon him to pay the amount due. The complaint was filed pursuant to the failure of the first respondent to pay the amount within the statutorily prescribed period. On the said complaint carrying such allegations cognizance was taken and it was taken on file and numbered as C.C.No.228 of 2004. On due process the first respondent appeared before the court and on being read over and explained the particulars of the offence he pleaded not guilty and claimed to be tried. To prove the offence evidently, the appellant got herself examined as PW1 and got marked Exts.P1 to P6. After the closure of the evidence of the appellant, the first respondent was examined under Section 313, Cr.P.C. and he denied all the incriminating circumstances put to him. He did not adduce any evidence in defence. After carefully evaluating the evidence on record the trial court found that the appellant had succeeded in proving commission of the offence under Section 138 of the Negotiable Instruments Act by the first respondent. Consequently, he was found guilty of the offence under Section 138 of the Negotiable Instruments Act by the trial court and convicted thereunder and sentenced to undergo simple imprisonment for a period of four months and to pay a compensation of 75,000/ - under Section 357(3), Cr.P.C. and in default of payment of compensation the first respondent was directed to undergo simple imprisonment for a further period of two months. Aggrieved by the same, the first respondent filed Crl.A.No.680 of 2006. As per the impugned judgment the appellate court reversed the findings and set aside the order of conviction passed by the trial court. The first respondent was found not guilty under Section 138 of N.I. Act and was consequently acquitted under Section 255(1) Cr.P.C. Hence, this appeal.

(3.) I have heard the learned counsel appearing for the appellant, the learned counsel for the first respondent and also the learned Public Prosecutor.