V.K.MOHANAN, J. - (1.)AGGRIEVED by the judgment dated 20/03/2009 in Crl.A.No.859 of 2007 of the court of Sessions, Kottayam the respondent therein who is the complainant in a prosecution for the offence punishable under Section 138 of the N.I. Act preferred the present appeal, as the lower appellate court acquitted the accused, after setting aside the conviction and sentence imposed on the respondent/accused as per the trial court judgment.
(2.)THE case of the complainant is that the accused borrowed an amount of Rs.1,80,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 03/06/2005 for the said amount which, when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the dishonoured cheque amount in spite of the statutory notice served on him and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself was mounted to the box and examined as PW.1. He has also produced Exts.P1 to P7 documents. From the side of the defence the accused himself got examined as DW.1 and produced Ext.D1 diary. Ext.C1 is also marked as court exhibit. THE trial court on the basis of the above evidence and materials found that all the essential ingredients of the offence under Section 138 of the N.I. Act are attracted and proved against the accused and accordingly he is found guilty for the offence punishable under Section 138 of the N.I. Act. Accordingly on conviction of the accused for the offence under Section 138 of the N.I. Act, he is sentenced to undergo simple imprisonment for six months and also directed him to pay a sum of Rs.1,80,000/- to the complainant as compensation under Section 357(3)of Cr.P.C. and in default of payment of compensation he is directed to undergo simple imprisonment for another period of six months. When the above finding and order of conviction and sentence were challenged at the instance of the accused, the lower appellate court interfered with the same and allowing the appeal by judgment dated 20/03/2009, acquitted the accused by setting aside the judgment of the trial court. It is the above judgment of the appellate court and the findings thereon are challenged in this appeal at the instance of the complainant.
I have heard Sri.K.Jaju Babu, learned counsel for the appellant and Smt.A.Sreekala, learned counsel for the respondent. I have also perused the judgment of the appellate court as well as the trial court and scrutinized the evidence and materials on record.

The learned counsel for the appellant vehemently submitted that the lower appellate court erroneously interfered with the findings of the trial court and set aside the conviction and sentence imposed against the accused. According to the learned counsel the accused has admitted his signature in Ext.P1 cheque and he has also admitted the transaction with the complainant, and had also failed to take appropriate contention in the reply notice, and on the basis of above facts and grounds the trial court convicted the accused but the appellate court simply for the reason that no averment taken in the complaint regarding the execution of the cheque, interfered with the trial court judgment which is legally and factually not sustainable and therefore according to the learned counsel the judgment of the trial court has to be restored approving the conviction and sentence recorded by the trial court and to set aside the judgment of the appellate court. On the other hand, the learned counsel for the respondent/accused strenuously submitted that the appellate court is right in its finding and judgment especially when there is no appropriate averment in the complaint regarding the execution and issuance of the cheque. The learned counsel submitted that though the accused issued a reply notice denying the transaction and execution and issuance of the cheque, which defence of the accused is fully known to the complainant, no proper averment is taken in the complaint. It is also the submission of the learned counsel that there is no admission from the side of the accused in terms of the case of the complainant regarding the transaction and execution of the cheque. Therefore according to the learned counsel the appellate court is correct in setting aside the judgment of the trial court and acquitting the accused and no interference is warranted.

(3.)I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent.
In the light of the rival contentions advanced by the counsel of the opposite parties and in the light of the evidence and materials on record, the question for consideration is whether the appellant has succeeded in substantiating its challenge against the judgment of the lower appellate court and to interfere with the order of acquittal recorded in favour of the respondent/accused. The crux of the complainant's case is that the accused borrowed a sum of Rs.1,80,000/- from him and towards the discharge of that liability the accused issued Ext.P1 cheque. Whereas the case of the accused is that he has not received any amount as claimed by the complainant and Ext.P1 cheque was not issued towards the discharge of any such liability. On a careful scrutiny of the judgment of the trial court it appears that the trial court has failed to consider whether the complainant has succeeded in establishing its case in terms of the ingredients of Section 138 of the N.I. Act. On the other hand, the trial court proceeded to examine the defect and infirmities in the evidence of the defence. It is the above illegalities, according to me, persuaded the appellate court to interfere with the finding of the trial court. The appellate court has categorically found that, regarding the transaction and the execution and issuance of the cheque, absolutely there is no averment in the complaint. On a reading of Section 138 of the N.I. Act, it can be easily understood that in order to fix liability under Section 138 of the N.I. Act upon the accused, the complainant who is the holder of the cheque in question has to plea the facts which are necessary to constitute the ingredients of Section 138 of the N.I. Act and to adduce evidence in terms of such pleading. The lacuna from the side of the complainant in taking appropriate pleading in his complaint has assumed importance especially in the backdrops of the defence advanced by the accused. It may be true that the defence of the accused may not be constant and consistent in all the stages of the prosecution.