M.K. SREEMATHI Vs. N. NALINKSHAN

JUDGEMENT

(1.) The complainant in C.C.No.247/2003 on the file of the Judicial First Class Magistrate Court- IV, Kozhikode, aggrieved by the acquittal of the accused under Sec. 255(1), Cr.P.C. for an offence punishable under Sec. 138 of the Negotiable Instruments Act ("N.I.Act" for short) is in appeal impugning the judgment of the learned Magistrate dtd. 19/9/2006.

(2.) The facts in brief are thus: The accused allegedly borrowed a sum of Rs.50,000.00 from the complaint sometime in April, 2001 from her residence. After three years on 8/4/2003, he issued Ext.P1 cheque drawn on his account maintained with the Syndicate Bank, Mavoor Road Branch for the borrowed amount. On being presented, the cheque was dishonoured for want of sufficient funds as evidenced by Ext.P2. Statutory notice as Ext.P3 was issued to the accused demanding payment of the cheque amount, to which the accused sent a reply containing untenable contentions and refrained from paying the amount within the time stipulated. Hence the complaint.

(3.) The accused denied the transaction with the complainant altogether. However, he admits the signature on Ext.P1 cheque. According to him, he had borrowed Rs.10,000.00 from the husband of the accused in the year 1991, and had entrusted a blank signed cheque as security. Though he discharged that debt, he did not get the cheque returned. The complainant has concocted Ext.P1 cheque given to her husband and filed this complaint. The accused has also testified before the Court as DW1 in support of his defence version. Ext.D1 is the copy of the reply notice which was sent by him and Ext.D2 is the passbook pertaining to his account. The defence is that Ext.P1 cheque could never have been issued in 2003 as alleged because, one cheque immediately preceding Ext.P1 cheque, is seen presented on 27/10/1991. All the cheques in the cheque book were issued between 1991 and 1994 and hence, the possibility of retaining Ext.P1 alone to be issued to the complainant in the year 2003 is remote. The ink used for the entries made in Ext.P1 cheque differs from the ink used to put the signature of the accused, which Crl.Appeal No. 2517 of 2006 also would support the probability of the case of the defence, is the argument of the defence Counsel.