VARIKKODAN ABOOBACKER Vs. ABDUL KAREEM AND ORS.

JUDGEMENT

(1.) THIS appeal arises from the dismissal of S.T. No. 56 of 2010 of the Judicial First Class Magistrate -II, Tirur for offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) THE case of the complainant was that the accused had borrowed a sum of Rs. 40,000/ - on a date about one year prior to the complaint, undertaking to return it by December 2005. A cheque dated 02.12.2005 was delivered. It was presented for collection but was returned dishonoured on ground of insufficiency of funds. After issuing a statutory notice, the complaint was laid. Accused appeared and denied the charge. On the side of the complainant, PW1 was examined and Exts.P1 to P5 were marked. There was no defence evidence. Learned magistrate on an evaluation of the available materials concluded that the complainant failed to prove his case and hence acquitted the accused.

(3.) THE specific case of the complainant as deposed by him as PW1 was that a loan of Rs. 40,000/ - was given to the accused. Even though the exact date of loan was not mentioned, in the course of cross examination, he deposed that he remembered it to be on 02.12.2005. Ext.P1 was the cheque which was delivered by the accused. It was returned dishonoured as evidenced by Ext.P2 memo. Notice was sent, a copy of which was marked as Ext.P3, service of which was evidenced by Ext.P5. In his evidence, he asserted that the cheque was signed by the accused in his presence towards the discharge of a legally recoverable debt.