JOSE THANKACHAN Vs. P.G. GEORGE

JUDGEMENT

(1.) THE complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant herein, as he is aggrieved by the judgment dated 13.10.2008 in C.C.No.382 of 2007 of the Judicial First Class Magistrate Court, Erattupetta by which the learned Magistrate, in his complaint, acquitted the accused under Section 255(1) of the Cr.P.C.

(2.) THE case of the complainant is that towards the repayment of the loan availed by the accused from him, the accused issued Ext.P1 cheque dated 12.5.2007 for an amount of Rs.2lakhs which when presented for encashment, returned dishonoured due to insufficient fund in the account of the accused. It is the further case of the complainant that the accused has not repaid the cheque amount in spite of the statutory notice served on him. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, the complainant himself has mounted to the box and got examined as PW1. He has also produced Exts.P1 to P6 documents. From the side of the defence, Dws.1 to 3 were examined and produced Exts.D1 and D2. The trial court finally has found that the accused has not issued Ext.P1 cheque towards the discharge of any legally enforceable debt or liability and accordingly, found that the essential ingredients of Section 138 of the N.I.Act are not attracted and consequently, found that the accused is not guilty for the said offence and thus, he is acquitted. The trial court has also ordered to book M.C.case against the complainant under Section 250 of the Cr.P.C. for having made the accusation against the accused without reasonable cause and ordered to issue summons to the complainant to show cause why he should not pay compensation to the accused. It is the above findings and order of acquittal and the proceedings under Section 250 of the Cr.P.C. are challenged in this appeal.

(3.) COUNSEL for the appellant vehemently submitted that the accused has admitted that Ext.P1 cheque belongs to his account and also admitted the signature as that of him, which is seen in Ext.P1 cheque. Therefore, according to the counsel, the complainant being the holder of the cheque is entitled to get presumption under Section 138 of the N.I.Act, but the learned Magistrate rejected the case of the complainant and opted to accept the case of the defence against the decision of the Apex Court reported in Rangappa v. Sri.Mohan [2010 KHC 4325].