IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.L.P..No. 1138 of 2010() --------------------------- ST.37/2010 of J.M.F.C. - II, KARUNAGAPPALLY .................... PETITIONER/COMPLAINANT (S): -------------------------------- BALAKRISHNA PILLAI, SARADA MANDIRAM, KULANGARABHAGOM MURI, CHAVARA P.O., KOLLAM DIST. BY ADV. SRI.N.VIMALAN RESPONDENT(S): --------------- 1. KRISHNANKUTTY, SOORANAD KIZHAKKATHIL HOUSE, PALACKAL MURI, THEVALAKKARA P.O. KOLLAM DIST – 690 524. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No.1138 of 2010 ----------------------------------------------- Dated 2nd December, 2010. O R D E R This petition is filed for granting special leave to file appeal against an order of acquittal. 2. Petitioner filed a complaint against the first respondent alleging offence under Section 138 of the Negotiable Instruments Act, inter-alia contending that accused availed of a loan of Rs.40,000/- from the petitioner on 22.11.2005 and for the discharge of the said liability, he issued a cheque dated 18.1.2006 drawn on Federal Bank. When cheque was sent for collection, it was dishonoured for insufficiency of funds. A lawyer notice was issued, but accused did not respond to the same. The amount was not returned and hence, the complaint was filed. 3. To prove the case of the prosecution, PW1 was examined and Exts.P1 toP6 were marked. The accused examined DW1 on his side. According to him, he borrowed Rs.20,000/- from one Vijayakumar, who is the son of the complainant and he was also paying interest for the said Crl.L.P. No.1138/10 2 amount to him. When he went to settle the transaction, a dispute arose regarding the amount. A signed blank cheque had been obtained while getting the amount from Vijayakumar, as security. The complainant took the said cheque from his son and it was misused for filing the complaint. 4. The trial court, after analysing the evidence, found that the evidence of PW1 does not prove the execution of the cheque. The court found that the complainant even denied the facts stated in the complaint and the affidavit. While he was examined in court he stated that the facts referred to in the complaint and the affidavit that the entries in the cheque were written by the accused are not correct. He also admitted that he did not know, who gave the details with respect to the complaint to his counsel. The relevant observations made by the trial court in the judgment in paragraph 9 are quoted below : “PW1 deposed that the accused is known to him since 2004. When cross examined, he admitted that he does not know about the job of the accused. He categorically stated that he neither remembered the date on which the accused Crl.L.P. No.1138/10 3 requested him to lend money nor the date on which the accused borrowed the amount. He also admitted that he does not know in which branch of Federal Bank Ext.P1 cheque belongs. He further deposed that he does not know the cheque date. PW1 also deposed that the averments in the complaint and in the affidavit, that the entries on the cheque were written by the accused is not correct and admitted that he does not know who has given the detail with respect to the complaint to his counsel.” 5. The trial court also held that mere signing of an instrument cannot be considered as execution of cheque. It was also found that presumption under Sections 118 and 139 of the Negotiable Instruments Act can be drawn only when execution is admitted or proved. In paragraphs 11 and 12, the trial court observed as follows :- “11. The evidence let in by PW1 discloses the fact that he is unaware about the whereabouts of the accused and also ignorant about the alleged execution of Ext.P1 cheque. No independent witness was examined by PW1 to prove the transaction and execution of Ext.P1 cheque. 12. Here the accused is admitting the signature in Ext.P1 cheque. Admission is signing in a blank cheque does not amount to an admission of execution of cheque. The presumption under Section 118 and Section 138 of the Negotiable Instruments Act can be drawn only when the Crl.L.P. No.1138/10 4 execution of the cheque is admitted or proved. If only execution is established then only the presumption follows that it has been issued towards the discharge of debt or liability. The execution of the instrument is not a physical act of signing of the instrument but of drawing the instrument with the intend to do so. Mere signing of the instrument cannot be considered as execution of the instrument. Here in this case nothing material regarding the execution of Ext.P1 cheque being remembered by the complainant. Nothing is there in evidence to show that the transaction covered by Ext.P1 cheque is genuine and bonafide. The materials produced discloses suspicious circumstances surrounding the transaction which probabilises the case of the accused. There is nothing in evidence to show that Ext.P1 cheque was duly executed.” 6. Learned counsel for petitioner submitted that the complainant/ petitioner is a man aged 83 years and the mistakes committed were due to the lack of his memory and those may not be taken seriously. Only because he could not state the correct date, the name of branch of the bank etc., his evidence may not be discarded, it is submitted. The accused did not establish his case that he had borrowed money from the complainant's son. Crl.L.P. No.1138/10 5 7. On going through the order under challenge and on hearing the petitioner's counsel, I do not find any infirmity, impropriety or illegality in the order and it does not warrant any interference. The trial court has correctly analysed evidence and come to proper conclusions. Hence, I am not inclined to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs