J U D G M E N T

This appeal is at the instance of the complainant in ST No.359 of

2004 on the file of Judicial First Class Magistrate Court-IV, Kozhikode, challenging acquittal of the accused under Section 138 of the Negotiable Instruments Act (hereinafter referred as ‘the NI Act’), vide judgment dated

01.11.2006.

2. The complainant is M/s.Poly Flex Fibre Products represented by its sole proprietrix Smt.Mary Kutty Alex, wife of Sri.K.C.Thomas. The case of the complainant is that the accused, who is the leader of N.Abdulla Group of Fishermen, approached the complainant firm, for manufacturing a fibreglass boat. The boat was manufactured and delivered to the accused after receiving the entire amount. Thereafter, the accused approached the complainant requesting for a loan of Rs.1,75,000/-, for purchasing a fishing net. On 23.05.2003, Rs.1,75,000/- was paid by the complainant to the accused on the strength of Ext.P1 receipt. Towards discharge of that debt, Ext.P2 cheque was issued on the very same day, i.e., on 23.05.2003 for an amount of Rs.1,75,000/-, with a request to present the cheque before Bank after four months. That period was extended further by one more month and thereafter, the complainant presented the cheque before Bank for encashment. But it was dishonored for the reason ‘funds insufficient’. Though Ext.P4 notice was sent intimating dishonour of the cheque and demanding the cheque amount, the amount was not returned though a reply was sent with untenable contentions. Hence the complaint.

3. After taking cognizance and on appearance of the accused before the trial court, particulars of offences were read over and explained, to which, he pleaded not guilty and claimed to be tried. PW1 was examined and Exts.P1 to P7 were marked from the side of the complainant to prove her case. On closure of the complainant's evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record and according to him, he had no transaction with the complainant and she was a stranger to him. He had given blank cheque to the husband of the accused, when the order for manufacturing the fibreglass boat was given to him. No receipt was executed by him, as claimed by the complainant. DW1 was examined.

Exts. D1 to D7 were marked from defence side.

4. On analysing the facts and evidence and on hearing the rival contentions from either side, the trial court acquitted the accused finding that the accused was able to rebut the presumptions available in favour of the complainant under Section 139 of the NI Act, and there was nothing to show that Ext.P2 cheque was issued by the accused to the complainant towards discharge of a legally enforceable debt. Aggrieved by the acquittal of the accused, this appeal has been preferred by the complainant.

5. Heard learned counsel for the appellant/complainant and learned counsel for the 1st respondent/accused.

6. Learned counsel for the appellant would contend that the accused borrowed Rs.1,75,000/- from the complainant and issued Ext.P2 cheque towards discharge of that debt. Ext.P1 receipt was executed by the accused on receipt of the amount, apart from issuing the cheque. The cheque was dishonoured for the reason insufficient funds. She had compiled with all the legal formalities in order to bring home an offence punishable under Section 138 of the NI Act against the accused. Moreover, the presumptions available under Sections 118 and 139 of the NI Act also will come to her aid to show that, Ext.P2 cheque was issued towards discharge of a legally enforceable debt. So, according to her, learned trial court went wrong in acquitting the accused under Section 138 of the NI Act and hence the impugned judgment is liable to be set aside.

7. On the other hand, learned counsel for the accused would submit that the complainant was not able to prove her locus standi to file the complaint. All the documents produced by the complainant would show that, her husband Mr.K.