V.K.MOHANAN, J. - (1.) THIS appeal is at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act as he is aggrieved by the judgment dated 11.11.2002 in Crl.A.No.179/2001 of the court of Sessions, Palakkad by which the learned II Additional Sessions Judge of the lower appellate court acquitted the accused, even though the learned Magistrate of the trial court by judgment dated 17.4.2001, in C.C.No.166 of 1998 convicted the accused.
(2.) THE case of the complainant is that the accused borrowed a sum of Rs.75,000/- and on demand , towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 26.2.98 which when presented for encashment dishonoured for want of sufficient fund and the accused has not repaid the dishonoured cheque amount in spite of a statutory notice served on him and thus according to the appellant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, to substantiate the case of the complainant, the complainant himself mounted to the box and got examined as PW1 and in addition to that PW2 was also examined. Besides the above, Exts.P1 to P5 documents were also proved. From the side of the defence, DW1 was examined and marked Ext.D1 Document. After having considered the evidence and materials on record, the trial court has found that the complainant has proved his case beyond reasonable doubt and accordingly, the accused is found guilty for the offence under section 138 of the NI Act and accordingly, he is convicted thereunder. On such conviction, the accused/respondent is sentenced to undergo simple imprisonment for six months and also directed to remit an amount of Rs.75,000/- and it is also ordered that, on realisation of the said amount, the same shall be given to the complainant as compensation under section 357(3) Cr.P.C. Aggrieved by the above conviction and sentence, the accused who is the Ist respondent herein preferred an appeal before the Sessions Court, Palakkad and by judgment dated 11.11.2002, in Crl.A.No.179/2001, the Court of Sessions Palakkad Division reversed the order of conviction recorded by the trial court and accordingly, the accused/respondent is acquitted. It is the above finding of the lower appellate court and order of acquittal challenged in this appeal on getting leave of this court under section 378(4) of Cr.P.C.
(3.) I have heard Sri K.M.Sathyanatha Menon, the learned counsel appearing for the appellant and Sri P. Vijayabhanu, the learned counsel appearing for the Ist respondent/accused. I have also perused the judgments of the courts below and I have scrutinized the evidence and materials on record. The learned counsel for the appellant vehemently submitted that though a statutory notice was sent to the accused, the accused did not opt to send any reply which shows that the accused accepted the case of the complainant. According to the learned counsel, the appellant/complainant produced Ext.P1 cheque, which pertained to the account maintained by the accused, from the possession of the complainant, and the accused has no explanation as to how Ext.P1 cheque reached in the hands of the complainant. Therefore, the execution and issuance of the cheque has been accepted by the accused but the lower appellate court took a contra view unsupported by any materials or evidence. It is also the case of the learned counsel for the appellant that, Ext.P1 cheque was dishonoured for the reason of insufficient fund in the account maintained by the accused and, therefore, the offence under section 138 of the NI Act is attracted in the present case. Thus, according to the learned counsel, the finding of the trial court is absolutely correct but the lower appellate court interfered with such finding and reversed the same and acquitted the accused. Therefore, according to the learned counsel for the appellant, the order of the lower appellate court is liable to be set aside and to restore the conviction and sentence recorded by the trial court.;