IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.A.No. 918 of 2003(B) ------------------------ AGAINST THE ORDER IN CRLP.25/2003 ST.417/1999 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... APPELLANT: COMPLAINANT: -------------------------- M/S. RADIANT MARKET BEAMS (P) LIMITED, 1/969, E ZAINA BUILDING, KANNUR ROAD, KOZHIKODE REPRESENTED ITS MANAGING DIRECTOR, MR.K.V.V. NAMBIAR. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: ACCUSED AND STATE: --------------------------------- 1. V.K. GOUTHAMAN, VISHNULAL INDUSTRIES, 18/1376, PUTHIYAPALAM, CALICUT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.JACOB ABRAHAM FOR R1 BY P.P.DMY. M.K. PUSHPALATHA FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.918 OF 2003 ------------------------------ Dated this the 13th day of August, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by C.J.M, Kozhikode in S.T.No.477/1999. It was a case filed under Section 138 of the N.I. Act. It is the case of the complainant that there were business dealings between the complainant and the accused and towards the liability of Rs. One lakh due from the accused to the complainant, a cheque was issued for Rs.75,000/= on 29.10.1998 which when presented for encashment returned with the endorsement of insufficiency of funds. Though a lawyer notice was issued, no amount was paid. Hence, the action. 2. The defence appears to be that the accused had given a signed blank cheque towards the security at the time of the business transaction and that had been utilised by the complainant to file a case of this nature. 3. In the trial court PW1 and Dws 1 to 4 were examined. On an analysis of the evidence, the court below had acquitted the accused. It is against that decision the present appeal is CRL.A.NO.918/2003 2 preferred. The points that arise for determination in the appeal are: (1) Whether materials are sufficient to hold the accused guilty under Section 138 of the N.I. Act and (2) Is there anything to interfere with the decision rendered by the court below. 4. Points: Heard the learned counsel for the appellant as well as the respondent. It is the case of the complainant that Ext.P2 cheque has been issued towards the discharge of the liability due to the complainant by the accused on 29.10.1998 and had been dishonoured. On the contra, the case of the accused is that he had given a blank signed cheque as security at the time of the business transaction. The evidence is that of PW1. In a case of this nature, one has to establish that there was a transaction between the complainant and the accused and the amount was due from the accused and it was for that amount, the cheque was issued. 5. I had perused Ext.P2 cheque in this case. The body of Ext.P2 cheque was written with a ball pointed pen and also signed with the ball pointed pen. Originally the date 29.4.1998 was also written with the ball pointed pen. But we CRL.A.NO.918/2003 3 find that later four has been scored of and ten is written with a signature. That signature and correction were made with ink pen. I had perused the signature meticulously and I find that certainly there is difference in the signature seen on the bottom and on the top. It is true, an ink pen is used, it might have spread. Suppose a cheque is written with a date and it is corrected instantaneously, necessarily the same pen should be used for the correction. The change of month as October from April, has got significance in this case because an action will not lie if it is a cheque of 29.4.1998. It is explicitly clear from the cheque itself that regarding the said correction in a criminal prosecution, the burden is on the complainant. He should have tendered some explanation or evidence. Nothing is forthcoming in this case. It is in this background, we have to find out what was the document available before the court regarding the transaction. Admittedly there had been some business dealings i.e., on a day an amount of Rs. One lakh is due. If the cheque was issued after settling the account, being a company which have day to day financial transaction there will be a day book or ledger. When a cheque is issued towards the discharge of the CRL.A.NO.918/2003 4 liability, at least it will be seen in the day book regarding receipt of the cheque. Whether it is honoured or dishonoured is a subsequent question. Similarly, the amount outstanding as on the date was Rs. One lakh would have to be proved by producing the documents. But no documents are produced in that regard. So, in the absence of any concrete evidence to establish the liability against the correction which emanates from some sort of tampering at some stages, the court below found that the case is not proved. I find that there are no reasons to interfere with the decision and so the appeal is devoid of merit and therefore, the same is dismissed. M.N. KRISHNAN, JUDGE cl 5 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.918 OF 2003 ------------------------------ 13th day of August, 2009 JUDGMENT