T. ABRAHAM Vs. D.S. MENON

JUDGEMENT

(1.) THIS appeal is preferred against the order of acquittal in C.C.628/98 of the Judicial First Class Magistrate -III, Kottayam. The brief facts necessary for the disposal of the appeal are stated as follows. It is the case of the complainant that the accused had borrowed a sum of Rs. 35,000/ - and towards he discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement insufficiency of funds. Statutory notice was issued and prosecution was launched.

(2.) ON the contra, the accused would contend that he has not borrowed any amount from the complainant, that the accused, complainant and one Saji K.Thomas had purchased a bus from one M.S. Mohankumar and subsequently there was an agreement entered into between the three whereby the accused was given the vehicle for which an amount of Rs. 35,000/ - was outstanding and so furnished a security by a cheque for Rs. 35,000/ -. There was also a recital in the agreement that if the amount due to the financier exceeds what is stated in the document then there is no liability and the cheque cannot be placed for encashment. Really there was an amount of Rs. 2,35,000/ - outstanding to the financier and so the cheque could not have been presented and so action is bad. The trial court appreciated these materials and acquitted the accused. It is against that decision the appellant has come up with this appeal.

(3.) THE learned Counsel for the appellant very strongly contends before me that the complainant had never admitted the execution of Ext.B2 document and further he had moved an application for sending the document for comparison by an expert which had been wrongly rejected by the Court below and that had resulted in the miscarriage of justice. He would contend the materials are sufficient to indicate that the complainant is entitled to proceed with the prosecution.