IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 CRL.A.No. 357 of 2001 ----------------------- CC.187/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... APPELLANT: COMPLAINANT: ----------- JAYACHANDRAN, S/O.VATTIRINGAYIL KUMARAN, PORKKALANGAD DESOM, KANIPAYYUR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.JOSE K.KOCHUPAPPU SRI.V.G.SANKARAN RESPONDENTS: ACCUSED/STATE: ------------- 1. P.K.SADANANDAN, S/O. PONNARASSERY KRISHNANKUTTY, ARTHOL VILLAGE, CHEMMANNUR DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.RAJIT FOR R1 SRI.RANJIT BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8-2-2008 , THE COURT ON 08/02/2008 DELIVERED THE FOLLOWING: K. HEMA, J. -------------------------------------------- Crl. Appeal No. 357 of 2001 -------------------------------------------- Dated this the 8th day of February, 2008. JUDGMENT Appellant filed a complaint against the first respondent alleging offence under Section 138 of the Negotiable Instruments Act ('the N.I. Act' for short). Evidence was adduced and after analysing the evidence on record, the trial court found that the prosecution has not proved its case. It was also held that the complainant failed to establish that Ext.P1 cheque was issued by the accused to the complainant in discharge of legally enforceable debt or liability. The accused was acquitted and hence this appeal by the complainant. 2. According to the appellant, first respondent-accused borrowed Rs.70,000/- from the complainant on 5.1.1999 and for the discharge of the said debt, Ext.P1 cheque was issued. On presentation of the cheque in the bank, it was dishonoured for [Crl.A.357/01] 2 the reason that it “exceeds arrangement”. Ext.P2 is the dishonour memo. A lawyer notice was issued to the accused as Ext.P4. Though he received notice as evidenced by Ext.P6 postal acknowledgment card, he did not send any reply. He did not also pay the amount. Hence, a complaint was filed alleging offence under Section 138 of the N.I. Act. 3. Learned counsel appearing for the appellant argued that execution of Ext.P1 cheque is proved and hence a presumption can be drawn that it is issued for the discharge of a debt of Rs.70,000/-. It was submitted that the accused has not denied receipt of the amount from the complainant. The accused has also not sent any reply to the notice issued to him though it was received, as evidenced by Exts.P4 and P6. On going through the records and evidence in this case, I find that the accused has not even admitted the signature in the cheque. He has no case that the cheque was signed by him and handed over by him to the complainant. He only stated that the cheque in the blank form was handed over to Sangama Corporation when he obtained certain amount from the said institution. [Crl.A.357/01] 3 4. But the case of the complainant is that Ext.P1 cheque was executed by the accused. In the light of the denial of execution of Ext.P1 cheque (not even admission of the signature in the cheque), the burden is heavily on the complainant to establish that Ext.P1 was the cheque drawn by the accused. This has not been done by the complainant. The court rightly found that the case set up by the accused is more probable, since there is difference in the ink and the handwriting in Ext.P1. A suggestion was put to the complainant while examined as PW1 that the accused did not even know how to write English. This fact could not be denied by PW1. He only pleaded ignorance. In the above circumstances, execution of Ext.P1 cheque by the accused is not proved by the prosecution. 5. The mere production of a cheque leaf containing some writings will not be sufficient to prove that the accused has drawn the cheque. This is specially so, since the accused has not admitted even the signature in Ext.P1. The prosecution has to prove that the accused has drawn the cheque and in the absence of it, no conviction can be made for offence under Section 138. [Crl.A.357/01] 4 6. I cannot also accept the arguments advanced that on proof of execution of cheque, a presumption would arise under Section 139 of the N.I. Act. The presumption under Section 139 will not arise even if the execution of the cheque is proved. Several prerequisites are to be established by the complainant before a presumption can be drawn under Section 139. Anyway, the execution of the cheque is one of such pre- requisites. In the above circumstances, I find that presumption under Section 139 will not help the complainant to prove his case and there is no reason to interfere with the order of acquittal. 7. The mere failure to send a reply notice alone cannot be made a ground to convict the accused for an offence punishable under Section 138 of the N.I. Act. The mere delay in denying the relevant fact or allegations made by the complainant may not be of any consequence against the accused. The initial burden is on the complainant to establish the relevant ingredients of the offence. To prove one of such ingredients, he can avail of the presumption contained in Section 139, provided the pre-requisites are established including the fact that the [Crl.A.357/01] 5 complainant is the holder of the cheque who is entitled to receive the amount covered by the cheque from the accused. But none of the relevant facts are proved by the complainant and hence the accused was rightly acquitted. This appeal is dismissed. K. HEMA, JUDGE. Krs. [Crl.A.357/01] 6 K. HEMA, J. -------------------------------------------- Crl. Appeal No. 357 of 2001 -------------------------------------------- Dated this the 8th day of February, 2008. JUDGMENT