S.SHAJI Vs. S.RAVEENDRAN

JUDGEMENT

(1.) Accused in C.C.No.174/2005 on the file of Judicial First Class Magistrate Court -V, (Special Court for Mark list Cases), Thiruvananthapuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the complainant herein, against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').

(2.) The case of the complainant in the complaint was that, revision petitioner borrowed a sum of 1,25,000/ - on 12.07.2001 and issued Ext.P2 cheque in discharge of that liability, which when presented was dishonoured for the reason 'funds insufficient', evidenced by Ext.P3 dishonour memo. Complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had sent Ext.D4 reply notice with false allegations and he had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.

(3.) When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, originally the power of attorney holder of the complainant authorized by Ext.P1 power of attorney, who is none other than the father -in -law of the complainant was examined as PW1 and Exts.P1 to P6, P7, P7(a) and P7(b) were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had no money transaction with the complainant. In fact, the complainant/ PW2 and one Das and himself were working in Saudi Arabia and they were residing in the same room. One Jayan was taken to Saudi Arabia by the revision petitioner and the complainant was conducting a chitty among the friends and the said Jayan was a subscriber to the same and he had bid the chitty but defaulted and an amount of 4,000/ - Riyals was due from him and he absconded. Since the said Jayan was introduced to the complainant by the revision petitioner, he wanted the revision petitioner to pay the amount and there was some altercation occurred and the complainant informed the police about the illegal stay of the revision petitioner and accordingly the Saudi Arabia police arrested him and thereafter he was deported by virtue of emergency pass and there is no transaction. In order to prove his case, revision petitioner himself was examined as DW1 and one witness was examined as DW2 and Exts.D1 to D6 and D6(a) were marked on his side.