This appeal was filed by the complainant in C.C. No.226 of

2007 challenging the order of acquittal of the accused in a

prosecution initiated under Section 138 of the Negotiable

Instruments Act (for short 'the Act') before the Judicial

Magistrate of First Class-III, Kottarakkara.

2. During the pendency of this appeal, the original

complainant expired and later her legal heirs were brought on

record and they are presently prosecuting this appeal.

3. The complainant's case in the court below was that on

9.10.2004, accused came to her house and borrowed an amount

of Rs.60,000/- and simultaneously issued Ext.P1 cheque post

dated to 29.12.2005 drawn for Rs.60,000/- in the name of the

complainant. When the cheque was later presented before the

drawee bank, it was dishonoured on the ground of insufficiency

of funds. On demand with the accused for discharge of the

liability, he did not respond despite the fact that notice in writing

was received. Thereupon a complaint was lodged by the original

complainant invoking Section 138 of the Act.

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4. The accused pleaded not guilty when the substance of

the complaint was explained to him. The prosecution thereafter

examined the complainant as PW1 and admitted in evidence

Exts.P1 to P7. The accused raised a defence plea under Section

313 of Cr.P.C. that his transaction was in fact with the

complainant's husband Kavirajan. He admitted having borrowed

Rs.60,000/- and issued Ext.P1 cheque in the name of

complainant herself. But his case is that it was undated at the

time of issue and the transaction was between himself and the

complainant's husband. In support of his contention, he

produced Ext.D1 diary alleged to be regularly and punctually

maintained in the course of his business. He gave oral evidence

in support of his contention as DW1.

5. There is no dispute between the parties as to the

compliance of statutory formalities required under Section 138

read with Section 142 of the Act. The court below also correctly

found that institution of proceedings under Section 138 of the

Act was in full compliance with Section 142 of the Act.

There is no challenge on this aspect as between the parties in

this appeal also.

6. The court below after appreciating the entire evidence

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brought on record took the view that the real transaction was in

fact between the husband of the original complainant and the

accused. Since Ext.P1 cheque was issued in relation to a

transaction between the accused and Kavirajan, the husband of

the original complainant, it was held that the prosecution of

accused at the hands of the original complainant was not

maintainable under law and giving the benefit of doubt, the

accused was acquitted.

7. The finding of the court below is seriously challenged in

this appeal on the ground that the court below failed to

appreciate the nature of transaction that arose between the

parties in proper perspective of law. It was also contended by

the learned counsel for the additional appellants 1 to 3 that the

evidence on record was not correctly understood and

appreciated. It was also submitted that Ext.D1 diary relied on

by the court below did not give rise to any inference that any

transaction existed between the accused and Kavirajan. On the

other hand, the learned counsel for the accused/1^st respondent

herein contended that the impugned order ought to sustain on

the face of reasoning arrived at by the court below.

8. I heard the learned counsel for the additional appellants

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as well as the first respondent.

9. PW1 complainant said that she had previous

acquaintance with the accused and on 9.10.2004, she advanced

an amount of Rs.60,000/- to DW1 at her house and in discharge

of the aforesaid liability, he issued Ext.P1 cheque in her own

name post dated to 29.12.2005 for the same amount.

10. It is true that there is no independent witness

witnessing the