IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.L.P..No. 344 of 2011() -------------------------- CC.166/2008 of J.M.F.C.,IRINJALAKUDA .................... PETITIONER (S): COMPLAINANT ------------------------------------------ DHANALAKSHMY, W/O. VENUGOPALA CHETTIAR, MUTHIRAPARAMBIL HOUSE, CHELUR P.O., CHELUR DESOM, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ACCUSED AND STATE OF KERALA ------------------------------------------ 1. BINDHU, W/O. RADHAKRISHNAN, CHELUR HOUSE, EDAKULAM P.O., EDAKULAM DESOM, THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.L.P.No.344 OF 2011 ----------------------------------- Dated 25th May, 2011 O R D E R This petition is filed to grant leave to file appeal against order of acquittal. 2. Petitioner is the complainant. She filed a complaint against accused/respondent alleging offence under section 138 of Negotiable Instruments Act. As per allegations in the complaint, accused issued a cheque for Rs.70,000/- in discharge of a legally enforceable debt. But it was dishonoured due to insufficiency of funds. A lawyer notice was issued demanding payment, but amount was not paid and hence the complaint. 3. To prove prosecution case PW1 was examined and Ext.P1 to Ext.P7 were marked. Accused did not adduce any evidence, but disputed transaction and issuance of cheque. Learned counsel for petitioner argued that signature in the cheque is admitted and there is a presumption in favour of the complainant. He has not made clear at the time of hearing what type of presumption is available to him and under what provision of law such presumption is available. On going through the impugned CRLP.No.344/11 2 order, I find that trial court considered the matter in the right perspective. Trial court found difference in the ink in the signature in the cheque, Ext.P1 and the version given by PW1. At page 6 of the impugned judgment, trial court held as follows: “Complainant herself has stated that accused put her signature in Ext.P1 by using 'blue ink'. At the same time signature in Ext.P1 has been put by using 'black ink'. The complainant does not know who wrote in the cheque and she has not enquired about the person by whom it was written. She has simply stated that accused brought a written cheque and handed it over to her by the accused after putting her signature. 10. Upon perusal of the evidence before the court it is seen that version of PW1 in the box cannot be believed because of the reason that there are some material contradictions in her version. Complainant gave Rs.70,000/- to accused without any document is not a believable story. At least the complainant should have asked the accused to write in the cheque when she issued Ext.P1 cheque. From the evidence adduced by the complainant it is seen that she did not even ask the accused about the person in whose handwriting Ext.P1 cheque was written. The drawer of the cheque can execute the same in two ways. Either the drawer himself can write in the cheque or he can seek assistance of another to write in the cheque if he is unable to write.” Trial court has also held that since complainant has not discharged her initial burden to prove execution of cheque and CRLP.No.344/11 3 transaction, presumption is not available under section 139 of NI Act. On going through the impugned order, I do not find any infirmity in the reasons given for arriving at a conclusion that petitioner has not proved the execution of cheque. There is no ground to grant leave. This petition is dismissed. K. HEMA, JUDGE. Sou.