KESAVAN THANKAPPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The complainant in S.T.C. No. 32/90 on the file of the Judicial First Class Magistrate's Court, Cherthala is the appellant.

(2.) The appellant filed the complaint before the lower court alleging offence punishable, under S.138 of one Negotiable Instruments Act against the respondent. According to him, the respondent borrowed Rs. 10,000/- from him on 15.7.1989 from his house and issued a cheque for Rs. 10,000/- drawn on District Treasury Savings Bank, Alappuzha and when the cheque was presented for encashment on 26.12.1989 it was bounced. It is also alleged that when the appellant came to know about the dishonour of the cheque on 9.1.1990 he caused to send registered notice to the respondent on 18.1.1990 informing about the dishonour of the cheque and calling upon him to pay the amount. But that notice was returned unserved and again he caused to send another notice dated 30.1.1990. But the respondent has not repaid the amount. The lower court after trial by judgment dated 27.9.1990 found the respondent not guilty of the offence alleged against him and acquitted him and set him at liberty. The judgment is under challenge in this appeal.

(3.) The facts that the respondent has borrowed Rs. 10,000/- from the appellant and issued Ext. P1 cheque in favour of the appellant and on presentation for encashment it was dishonoured are not in dispute. In Ext. Dl memo returning Ext P1 cheque on 9.1.1990 it is stated that the cheque is out of date and refer to drawer. PW 3 who is the Senior Accountant in the District Treasury, Alappuzha has deposed that there was no sufficient amount to the credit of the respondent to honour the cheque and on the date of issue of Ext. P1 cheque viz. 15.7.1989 the amount lying to the credit of the respondent was Rs. 123/- and Ext. P1 cheque was returned from the Treasury due to two reasons viz. refer to drawer and cheque is out of date. The respondent has no case that there was sufficient fund to honour the cheque in his credit when it was presented for encashment.