SUJU K.S. Vs. O. SAJI AND ORS.

JUDGEMENT

(1.) The appellant is the complainant in C.C.No.458/2002 on the file of the Judicial First Class Magistrate Court, Palakkad, who is aggrieved with the acquittal of the accused under Sec. 255(1), Cr.P.C., by the learned Magistrate vide the impugned order dtd. 31/1/2006, for an offence punishable under Sec. 138 of the Negotiable Instruments Act(for short "N.I. Act").

(2.) The complainant's case in brief is thus: The accused, 1st respondent, allegedly borrowed a sum of Rs.80,000.00 on 20/3/2002 from the complainant promising to repay the same within a month. On demand, the accused had allegedly issued a cheque drawn on his account maintained in State Bank of India, Guruvayur Branch dtd. 8/5/2002. Ext.P1 cheque was dishonoured for want of sufficient fund. Exts.P2 and P3 are the dihonour memo and the intimation respectively. Statutory notice was issued demanding the cheque amount, copy of which is Ext.P4 and Ext.P5 postal receipt evidences despatch. The accused has accepted the notice as per Ext.P6 acknowledgment card, and sent a reply as Ext.P7, denying the transaction in toto. He contends that, being a businessman, he had some dealings with a person named Shobby and as security, handed over three blank cheque leaves to him together with a stamp paper. One of which has been misused by the complainant and another was misused by a person named Dharman, who too filed a complaint before the court. But soon withdrew the said complaint on realising the true state of affairs. The accused was examined as PW1, Ext.D2 is the copy of complaint allegedly filed by Dharman and Ext.D3 is a book in which details regarding the daily collection by one Ravi, who too used to supply goods together with Shobby. The third cheque was also misused and a complaint was filed. Ext.D4 is the copy of that cheque. Exts.D5 to D9 are dishonour memos, copy of notice and postal receipt as well as the affidavit in lieu of chief examination in that case. The accused had also testified that the handwriting of Ext.P1 cheque and Ext.D4 cheque are similar, which would indicate that cheques were misused by Shobby and complaints filed through different persons against the accused.

(3.) The complainant was not examined and in his place his power of attorney was examined as PW1. He testified that he had accidentally witnessed the transaction of money and issuance of cheques by the accused to the complainant on two different dates. No reason has been subscribed by the complainant for his not being examined in person. In view of the reply sent by the accused denying the transaction altogether, it was incumbent upon him to have got into the box in support of his complaint. The learned Magistrate found that the complainant had proved Ext.P1 cheque was supported by consideration and that the complainant has not discharged his proof regarding the transaction of money and issuance of cheque. The accused was thus acquitted. The complainant is aggrieved and hence the appeal.