A cheque under Sec. 138 cannot be enforced if the complainant fails to prove the existence of a legally enforceable debt.

O R D E R

This application is filed under Sec.378(4) Cr.P.C seeking leave to impugn the judgment rendered on 3.7.2012 by the Judicial First Class Magistrate's Court, Kodungallur, in the Calendar Case, C.C.No.2/2011, whereby the accused has been acquitted of the offence under Sec.138 of the Negotiable Instruments Act , for the alleged dishonour of the cheque in question for an amount of Rs. 1.5 lakhs. On the crucial issue as to whether the accused owed an amount of Rs. 1.5 lakhs to the complainant and whether she had issued Ext.P1 cheque dated 25.11.2010 for the said amount in favour of the complainant towards discharge of liability, the court below held after exhaustive analysis of the evidence on record that the complainant has not been able to cogently prove that there was indeed a transaction by him with the accused, who is a lady and that Ext.P1 cannot be considered as a cheque issued by the accused in favour of the complainant towards discharge of a legally enforceable debt, etc. Initially the case projected by the complainant in the complaint and in the lawyer's notice ::2::

was that Ext.P1 cheque was issued by him to the accused towards an antecedent debt. Later, while deposing before the trial court, PW1 (complainant) deposed that Ext.P1 cheque dated 25.11.2010 was given to him by the accused on 20.10.2010 when the accused had borrowed an amount of Rs. 1.5 lakhs from him and that has thus given a new version that the post dated cheque has thus been given on 20.10.2010. PW1 deposed that he is a taxi driver and though he has also claimed to be working as a broker, no evidence has been adduced by him to show that he is a real estate broker and a broker of vehicle sale business. The specific case of the defence is that the accused, who is as lady, had no transaction with the complainant and that the complainant happened to be a close friend of her divorced husband. That she had filed Ext.D2 first information statement in Crime No. 543/2010 of Mathilakam Police Station, alleging that her husband had committed physical and mental cruelty on her and had forced her to give her blank signed cheques to him. It is the case of the defence that in order to evade from his responsibility to pay reasonable and fair provision to the accused, her former ::3::

husband has handed over her blank signed cheques to two of his uncles, one Sri.Muhammed and Sri.Shamsudheen, as well as to the present complainant and that the said Sri.Muhammed and Sri.Shamsudheen have also filed private criminal complaints alleging offence punishable under Sec. 138 of the Negotiable Instruments Act against the accused, as has been done by the present complainant. That she was constrained to withdraw the cases as per Ext.D2 and the cases and the private criminal complaints instituted by the above said Sri.Muhammed and Sri.Shamsudheen who are uncles of former husband were also withdrawn. The specific case of the accused is that she had not given Ext.P1 cheque to PW1 (complainant) and that the blank signed cheque taken from her by her former husband has been handed over to the complainant who has misused the same by instituting a private criminal complaint.

2. PW1 has a specific case in his evidence that one Sri.Babu as well as the complainant's wife have witnessed the giving of the amount of Rs.1.5 Lakhs by the complainant to the accused and he expressed his willingness to examined the ::4::

above said Babu. However, these two crucial witnesses viz., Babu as well as the complainant's wife have not been examined on the side of the prosecution to adduce any evidence on behalf of prosecution. They have not been examined to prove the transaction alleged by the complainant. So also, in order to rebut the contention of the accused that PW1 has no proper source for the money in question, PW1 gave a specific version that he raised the said amount of Rs.1.5 Lakhs by his selling his property. But the complainant has not produced any documentary evidence connected with the sale