T G POLYMER AND COMPANY Vs. K S SHAJI, MANAGING DIRECTOR, KONCHERRY WEAVERS
HIGH COURT OF KERALA
T G Polymer And Company
K S Shaji, Managing Director, Koncherry Weavers
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P.Ubaid, J. -
(1.) The appellant herein is the complainant in C.C 123/2009 of the Judicial First Class Magistrate's Court-II, Alappuzha, and the 1 st respondent herein is the accused therein. The complainant brought the said prosecution under Section 138 of the Negotiable Instruments Act ( for short " the N.I. Act"), on the allegation that a cheque for Rs. 1,34,391/- executed and issued by the accused in discharge of the goods purchased by him from the complainant's firm happened to be bounced due to insufficiency of funds, and in spite of statutory notice, the accused failed to make payment of the cheque amount. The accused appeared before the trial court, and pleaded not guilty when the substance of the accusation was read over and explained to him. The complainant examined PW1 and proved Exts.P1 to P18 documents. The Ext.X1 specimen handwritings given by the accused were also marked. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances, and projected a defence that he had no transaction with the complainant firm as alleged in the complaint, at the relevant time, and that he had not executed the cheque in question in discharge of any liability. The further defence projected by him is that the Ext.P1 cheque is in fact the cheque leaf given by him as a signed blank cheque to one T.G Lal years back, and the complainant's wife somehow procured the said cheque from the wife of T.G Lal after his death, and brought a false complaint to extract money from him. However, the accused did not adduce any evidence in defence.
(2.) On an appreciation of the evidence adduced by the complainant, the trial court found that the complainant has failed to prove the execution of the cheque in question and also the transaction, or the liability alleged in the complaint. Accordingly, the learned Magistrate found the accused not guilty and acquitted him under Section 255 (1) Cr.P.C by judgment dated 10.3.2010. Aggrieved by the judgment of acquittal, the complainant brought this appeal with the leave this Court.
(3.) There is no dispute regarding the fact that the Ext.P1 cheque was bounced due to insufficiency of funds. The accused has no case that he had sufficient funds in his account to honour the cheque, or that it was bounced on some other ground. He has also no case that he had made any payment as required in the statutory notice. Thus, the complainant has proved the compliance of all statutory requirements for initiating prosecution under Section 138 of the Negotiable Instruments Act. But the question is whether the complainant has succeeded in proving the execution of the cheque in question, and also the transaction involving the liability, in discharge of which, the cheque was issued.;
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