VISWAMBHARAN Vs. SOMAN AND OTHERS

JUDGEMENT

(1.) The complainant in CC.No.128/2001 on the file of the Judicial First Class magistrate Court-I, Thirssur, is the appellant herein. The case was taken on file on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act' for short).

(2.) The case of the complainant in the complaint was that the accused borrowed a sum of Rs.2,70,000/- and in discharge of that liability, issued Ext.P1 cheque dated 30.03.2000 drawn on Indian Overseas Bank, Thrissur Town Branch in favour of the complainant. The complainant presented the cheque for collection through his banker and it was dishonoured by the drawee bank for the reason 'funds insufficient' on 08.09.2000, evidenced by Ext.P2 dishonour memo. This was intimated to the complainant by his banker vide Ext.P3 intimation letter dated 11.09.2000. The complainant issued Ext.P3 notice dated 21.09.2000 on the same day vide Ext.P5 postal receipt and the same was received by the accused on 23.09.2000, evidenced by Ext.P6 postal acknowledgment. He had sent Ext.P7 reply notice, but he had not paid the amount. So he had committed the offence punishable under Section 138 of the NI Act. Hence the complaint.

(3.) When the accused 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, the complainant himself was examined as PW1 and Exts.P1 to P8 were marked on his side. After closure of the complainant's evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure (hereinafter called 'the Code') and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that he had no transaction with the complainant but he had money transaction with the wife of the complainant and borrowed amounts on three occasions and executed sale deeds as security for the transaction. Though he has prepared to pay the amount and get back the documents, they were not amenable for the same, he filed OS.No.2376/2000 for declaring the sale deeds in favour of the wife of the complainant as security document and for consequential reliefs and also filed OS.No.2670/2000, when he came to know that the cheque given by him is likely to be misused for return of those cheques as well. It is after filing of the earlier suit that one of the cheques was misused and the present case was filed. In order to prove the case of the accused, he himself was examined as DW1 and Exts.D1 to D7 were marked on his side. After considering the evidence on record, the court below found that the accused had rebutted the presumption available under Section 139 of the Act and proved that there was no possibility of transaction as claimed by the complainant and acquitted the accused under Section 255(1) of the Code. Aggrieved by the same the present appeal has been preferred by the appellant/complainant before the court below along with Leave Petition as Crl.L.P.No.605/2003 and leave was granted and appeal was admitted.