IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 CRL.A.No. 245 of 2002() ----------------------- CC.317/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT: PDETITIONER/COMPLAINANT ------------------------------------- K.BABY, S/O. MADHAVAN, KUNHANDY HOUSE, THAYYIL, KANNUR. BY ADV. SRI.A.MOHAMED MUSTAQUE RESPONDENTS: RESPONDENT/ACCUSED --------------------------------- 1. FAZAL, S/O. KAREEM, "KHADEEJAS", KOCHADIYAN VAYAL, CHIRAKKALKULAM, KANNUR-3. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.T.M.ABDUL LATHEEF FOR R1 SMT.P.RESHMA KABIR FOR R1 BY P.P.SRI. C.M. NAZAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.245 OF 2002 ............................................. Dated this the 17th day of August, 2009 J U D G M E N T This is an appeal preferred against the acquittal passed by the learned Judicial First Class Magistrate-II, Kannur in C.C.No.317/1999. It is the case of the complainant that the accused had borrowed a sum of Rs.60,000/= on 20.4.1999 and on the same date had issued a cheque bearing the date 14.5.1999 towards the discharge of the liability. On 15.5.1999 when the cheque was presented for encashemnt it had returned with payment stopped by the drawer and thereafter a notice was issued to which a false reply was sent and thereafter prosecution had been initiated. 2. The case of the defence appears to be that the accused's father had borrowed a sum of Rs.5,000/= from one Saina at that time had handed over two blank cheques of the accused as security and one of such cheques had been utilised by the complainant to file the case. The accused denied the acquaintance with the complainant. : 2 : CRL.A.NO.245 OF 2002 3. In the trial court PW1 and Dw1 had been examined, Exts.P1 to P6 had been marked. In a case under Section 138 of the N.I.Act, the burden of proving the complaint is on the complainant himself and he cannot afford to pick holes in the defence case to establish the case of the prosecution. The burden of proving is absolutely on the complainant and if the accused is able to establish his case by preponderance of probability, then it will weigh in his favour. Here is a case where the accused had denied everything with the complainant. Then, it is the duty of the complainant to prove the case. The complainant is only a house wife. Her husband is a fisherman. The transaction is denied very well in the reply notice. There was a duty cast upon the complainant to prove the transaction. Unless the debt is proved, issuance of the cheque towards the discharge of the liability does not arise. In the cross examination it is suggested that the amount has been raised by selling net and implements of the house. The husband is not examined. So, there is absolutely no materials before the court to show that she did have capacity to raise : 3 : CRL.A.NO.245 OF 2002 Rs.65,000/= at that point of time. 4. A perusal with the naked eye itself would show that the signature in the cheque is done with a ball pointed pen which is not clear whereas the date, name and amount also written with the ball pointed pen. It is also made it clear that the signature and the writings in the cheque are not done simultaneously. It can also be seen that the handwriting of the accused shows only that of a ordinary person whereas handwriting in the body of the cheque appears to be of a person who is better in English than the complainant. It is in this backdrop the mater has to be analysed. The accused has got a definite case that he had issued two blank cheques towards the discharge for the father's loan to one Saina and it is from that Saina the cheques had been obtained and prosecution was initiated. Therefore, the burden is all the more on the complainant. Here except the half hearted assertion, no evidence worth acceptance is produced. The defence of the accused is very much even in the reply notice. When it is so, especially in the backdrop, the said lady had issued a notice to the : 4 : CRL.A.NO.245 OF 2002 complainant and thereafter she did not prosecute the case. The cheque number involved in this case is ending with numbers 125 whereas that of the other lady ends it with 126. So one cannot rule out the possibility of a case as suggested by the accused. Therefore, on facts itself materials are insufficient to hold that the complainant had advanced the sum of Rs.60,000/= and that the accused had issued a cheque towards the discharge of the liability. I do not find any merit in the appeal. Therefore, the appeal fails and the same is dismissed. M.N.KRISHNAN, JUDGE cl : 5 : CRL.A.NO.245 OF 2002 M.N.KRISHNAN, J. .................................. CRL.A.NO.245 OF 2002 ........................................ 17th day of August, 2009 J U D G M E N T