BABU Vs. LATHIKA AND ORS.

JUDGEMENT

(1.) The appellant herein is the complainant in S.T. No.1776/2000 of the Judicial First Class Magistrate Court, Kodungallur, and the 1st respondent herein is the accused therein. The complainant brought the said prosecution under Sec. 138 of the Negotiable Instruments Act (the N.I.Act) on the allegation that a cheque for Rs.45,000.00 issued by the accused on 6/11/1999, in discharge of the money borrowed by her from the complainant on 26/7/1999 was bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment.

(2.) The accused appeared before the learned Magistrate and pleaded not guilty, when the substance of the accusation was read over and explained to her. The complainant examined himself as PW1, and also proved Exts.P1 to P10 documents. When examined under Sec. 313 Cr.P.C., the accused denied the incriminating circumstances, and projected a defence that the Ext.P1 cheque was in fact handed over by her CRL.A.No.1428/2008 as security to a police man, when she borrowed an amount of Rs.25,000.00 from him. She did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused not guilty. Accordingly, the accused was acquitted by judgment dtd. 26/11/2003. Aggrieved by the said judgment of acquittal, the complainant brought this appeal with the leave of this Court.

(3.) On hearing both sides, and on a perusal of the materials, including the evidence given by the complainant as PW1, I find that the accused was wrongly acquitted by the trial court, and that, interference by this Court in appeal is absolutely necessary. The case of the complainant in the complaint itself is that, an amount of Rs.45,000.00 was borrowed by the accused at his residence, and on 6/11/1999, the accused issued a cheque for Rs.45,000.00 when the complainant demanded the amount. This is the consistent and definite evidence given by the complainant also. The court below found that the case of the complainant is suspicious, and that the defence CRL.A.No.1428/2008 projected by the accused is probable. I fail to understand, why the court below found the complainant's case suspicious. The defence projected by the accused when examined under Sec. 313 Cr.P.C. is that the Ext.P1 cheque in question was handed over by her as a security to a police man, when she borrowed an amount of Rs.25,000.00 from him. It is not known, who this police man is, or what is the connection between the said police man and the complainant. Curiously enough, the defence put to the complainant by way of suggestion during cross examination is that money was borrowed by the husband of the accused. Of course, the co-brother of the complainant is the said police man, and his name is Ramachandran. The accused has no definite case that any money was borrowed from the said Ramachandran, and that the cheque was given to Ramachandran as security. The accused does not have any probable, or consistent defence.