MADHAVAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant herein is the complainant in C.C. No.274/2003 of the Judicial First Class Magistrate Court-I, Nedumangad, and the 2nd respondent herein is the 1st accused in the said case. The appellant brought the said prosecution under Section 420 IPC on the allegation that the 1st accused, with the assistance and support of the 2nd accused, borrowed an amount of Rs.50,000/- from the complainant on 14.12.1998, and issued a cheque on that date, but later the cheque was bounced, and the complainant later realised that money was received by the accused with the dishonest intention of cheating him. The complaint was first filed by the appellant before the court under Section 138 of the N.I.Act, but during trial, it came out that the cheque in question is that of the 2nd accused. In such a circumstance, the complainant withdrew the earlier complaint brought against the 1st accused, and made the present complaint against the two accused.

(2.) The 2nd accused went absconding during trial. The cheque in question belongs to him. The case of the complainant is that making him believe that it is his own cheque leaf, the 1st accused issued the said cheque while borrowing the amount with the dishonest intention of cheating him, and the 1st accused did so with the knowledge, assistance and support of the 2 nd accused.

(3.) The 1st accused appeared before the trial court, and pleaded not guilty to the charge framed against him after the preliminary examination of the witnesses under Section 244 Cr.P.C. The complainant examined himself as PW1, and he examined two other witnesses also to prove his case. Exts.P1 to P8 documents were also proved on his side. In defence, the 1st accused examined himself as DW1. His definite case is that he had not borrowed any amount from the complainant, and that the Ext.P1 cheque was not in fact executed or issued by him. On an appreciation of the evidence adduced on both sides, the learned Magistrate found that the case of the complainant is suspicious, and that there is nothing to prove that the Ext.P1 cheque in question was in fact executed or issued by the 1st accused. Accordingly, the trial court found the 1st accused not guilty, and he was acquitted. Aggrieved by the said judgment of acquittal dated 27.1.2006, the complainant brought this appeal with the leave of this Court.