K. MOIDEEN Vs. C. M. RAMESAN

JUDGEMENT

(1.) The appeal is filed by the complainant against the judgment in CC No. 270/2002 on the file of the Court of the Judicial Magistrate of First Class, Payyoli. The complaint was filed under S.138 of the Negotiable Instruments Act alleging that the 1st respondent borrowed an amount of Rs.90,000/- from the appellant and in discharge of the said liability he issued Ext. P1 cheque and when the cheque was presented for encashment, the same was dishonoured because of insufficiency of funds in the account of the 1st respondent. After complying the statutory formalities, the appellant filed the complaint. To prove the case against the 1st respondent, the appellant himself was examined as PW 1 and Exts. P1 to P8 were marked. After completing the prosecution evidence, the 1st respondent was questioned under S.313 CrPC. He denied the allegation in the complaint and stated that he had not borrowed any amount from the appellant and the cheque in question was issued in favour of one Rajan Bhajanamatom on receipt of Rs.50,000/- from him and the said cheque was misused by the appellant for filing the complaint. To prove the case, the 1st respondent himself was examined as DW 1 and Exts. D1 to D3 were marked. After considering the entire evidence, the Trial Court found that the appellant had failed to establish the necessary ingredients of S.138 of the Negotiable Instruments Act against the 1st respondent and hence the 1st respondent was acquitted under S.255(1) CrPC. Aggrieved by the above, the petitioner has approached this Court.

(2.) Heard both sides.

(3.) The contention of the appellant is that the finding of the Trial Court regarding the rebuttal of the presumption under S.118 of the Negotiable Instruments Act is not based on any evidence or on any probability of the case suggested by the 1st respondent. The further contention of the appellant is that the case set up by the 1st respondent has not been properly considered by the Trial Court to come to the conclusion that the appellant failed to establish his case against the 1st respondent. The learned counsel further submits that as per S.118 of the Negotiable Instruments Act, presumption is available to the appellant regarding the consideration, time of acceptance etc. of the cheque in question. Lastly, the learned counsel contends that the appellant is entitled presumption available under S.139 of the Negotiable Instruments Act, as the 1st respondent had not denied the execution of Ext. P1 cheque.