JUDGMENT
G. Sasidharan, J.
1. The order of acquittal of the respondent, who was
accused in S.T.251/1995 on the file of the Judicial
Magistrate of the First Class, Erattupetta, is challenged
in this appeal by the appellant, who was the defacto
complainant in the above case. According to the
appellant, respondent issued Exhibit-P1 cheque for an
amount of Rs. 19,000/- drawn on Syndicate Bank, M.G. Road
Branch, Ernakulam and he presented the cheque for
encashment through the State Bank of Travancore,
Plassanal Branch. The cheque was dishonoured by saying
that there was no sufficient amount in the account of the
respondent for honouring the cheque. Appellant issued
notice on 1-4-1992 to the respondent informing him of the
dishonour of the cheque and demanding payment of the
amount covered by the cheque. Exhibit-P7 postal
acknowledgement card would show that notice was received
by the respondent on 15-4-1992. Since the amount covered
by the cheque was not paid by the respondent, complaint
was filed by the appellant alleging that the respondent
committed the offence under Section 138 of the Negotiable
Instruments Act. The trial Court, after taking evidence,
found that the respondent discharged his liability under
the cheque even before he lawyer notice was issued to
him and hence the respondent did not commit the offence
punishable under Section 138 of the Negotiable
Instruments Act. Respondent was hence acquitted by the
trial Court.
2. In this appeal the appellant says that
the finding by the trial Court that under Exhibit-D3
agreement dated 11-3-1992 the respondent discharged his
liability even before the notice was issued to the
respondent is incorrect.
3. The appellant gave evidence in the trial
Court as P.W.1. He said about the fact that Exhibit-P1
cheque issued by the respondent was dishonoured by the
bank for the reason that there was no sufficient amount
on the account of the respondent. P.W.2 is the Bank
Manager who said that on the date on which Exhibit-P1
came to the bank for encashment there was only an amount
of Rs. 121.30 in the account of the respondent and that
the cheque was dishonoured for the reason that there was
no sufficient amount in the account of the respondent.
4. Accused was examined as D.W.1 and his
contention is that he is a Share Broker having licence
from the Stock Exchange and that the appellant entrusted
400 share certificates with him and when the appellant
demanded back the share certificates those certificates
were with the Stock Exchange and hence he issued
Exhibit-P1 cheque to the appellant for an amount of
Rs. 19,000/-. He would contend that he did not execute
Exhibit-P9 agreement. The non-production of Exhibit-P9
along with the complaint is also pointed out by the
respondent to show that Exhibit-P9 is not a genuine
document.
5. D.W.2 is the attestor to Exhibit-D3
proved by the respondent when he was examined in the
trial Court. What is stated in Exhibit-D3 is that the
appellant received from the respondent 400 shares on
11-3-1992. Mention is made in Exhibit-D3 regarding the
cheque that was issued by the respondent and the
agreement was that since the cheque had been sent for
collection it would be given to the respondent as and
when it was returned to him. There is also statement in
Exhibit-D3 that all the dealings between the appellant
and the respondent in connection with the share
certificates came to an end.
6. The learned counsel appearing for the
appellant would say that Exhibit-D3 is not a genuine
document and on the basis of that document it cannot be
said that the amount covered by the cheque had already
been paid by the respondent. The decision on the
question whether the share certificates had been given
back to the appellant and there was agreement that the
cheque Exhibit-P1 would be given back when the cheque was
returned from the bank, depends mainly on the finding on
the question whether Exhibit-D3 is a genuine document.
The trial Court said that Exhibit-D3 was given by the
appellant to the respondent and it was on the basis of
the statements in Exhibit-D3 that it was found that the
liability was discharged by the respondent even prior to
the issuance of notice by the appellant. On going
through the evidence of D.W.2 it is seen that he speaks
about the issuance of Exhibit-D3 receipt by the
appellant. According to him, he was present when that
document was executed and he put his signature in that
document as an attestor. According to the learned
counsel appearing for the appellant, the evidence of
D.W.2 cannot be believed, because D.W.1 said that the
receipt was returned and handed over to the appellant in
Blue Moon Hotel whereas D.W.2 said that it was in the
restaurant in the above hotel that receipt was handed
over to the appellant. It is true that D.W.1 says that
receipt was written and handed over to the appellant in
the Reception of Blue Moon Hotel. D.W.2 says that the
receipt was signed by the appellant and was handed over
to the respondent in Blue Moon Restaurant. Even if there
are some minor contradictions in the versions of D.Ws.1
and 2 regarding the place where the receipt was written
and given to the respondent both of them say that it took
place in Blue Moon Hotel. There is no material
contradiction in the versions of D.Ws.1 and 2 to show
that their version regarding the issuance of Exhibit-D3
receipt cannot be believed. On going through the
judgment of the trial Court also it is seen that
sufficient reason is given by the learned Magistrate for
holding that Exhibit-D3 was actually given by the
appellant to the respondent. The finding by the trial
Court that the respondent discharged his liability even
before sending the lawyer notice is on the basis of legal
evidence. The conclusion arrived at by the learned
Magistrate that the respondent did not commit the offence
punishable under Section 138 of the Negotiable
Instruments Act is correct.
There is no merit in this appeal. The appeal is dismissed.