IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 CRL.A.No. 941 of 2002() ----------------------- (ST 4352/98 OF JUDL. FIRST CLASS MAGISTRATE COURT, KODUNGALLUR.) APPELLANT(S): COMPLAINANT ------------------------- SURESHBABU S/O. KUMARAN, ILLATHPARAMBIL, PULLUT, KODUNGALLUR. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SUSEELA, W/O. KUNJUNNY, MADATHINGAL ANCHAPALAM DESOM, METHALA, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI TEK CHAND THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009, THE COURT ON 11/08/2009 DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL.A.No.941 of 2002 -------------------------------------- Dated: AUGUST 11, 2009 JUDGMENT The challenge in this appeal by the complainant is to the judgment of Judicial Magistrate of First Class, Kodungallur, in ST No.4352/1998 dated 3rd August, 2002, acquitting the respondent/accused of the charge under sec.138 of the Negotiable Instruments Act. 2. The appellant/complainant filed a private complaint before the trial court alleging that the accused borrowed Rs.60,000/- from the complainant, that towards that amount the accused issued the cheque Ext.P1 dated March 22, 1998 drawn on the Kodungallur Branch of Thrissur District Co-operative Bank which, when presented for collection, was returned dishonoured for want of sufficiency of funds in the account of the accused in the Bank and that in spite of the notice Ext.P3 dated 13.4.1998, the accused did not repay the amount and that thus the accused has committed an offence punishable under sec.138 of the Negotiable Instruments Act. 3. On receipt of the complaint, the lower court recorded CRL.A.No.941 of 2002 2 the sworn statement of the complainant P.W.1 and took cognizance of the case. The accused on appearance before the lower court pleaded not guilty to a charge under sec.138 of the Negotiable Instruments Act. PW.1 was examined and Exts.P1 to P10 were marked on the side of the complainant before the trial court. When questioned under sec.313 Cr.P.C. by the lower court, the accused denied having committed any offence. The husband of the accused was examined as DW.1. 4. The lower court on an appreciation of evidence found the appellant not guilty of the offence punshable under sec.138 of the Negotiable Instruments Act and acquitted her. The complainant has now come up in appeal. 5. Heard the learned counsel for the appellant and the respondents. 6. The only point which arises for consideration is whether the finding of the lower court that the accused is not guilty of the offence punishable under sec.138 of the Negotiable Instruments Act and acquitting her can be sustained. 7. The learned counsel for the appellant argued that the accused admitted her signature in Ext.P1 cheque, that therefore CRL.A.No.941 of 2002 3 the presumption under secs.118 and 139 of the Negotiable Instruments Act is available to the complainant and that therefore the lower court is not justified in not accepting the case of the complaint. 8. For several reasons I am not inclined to accept the above contention raised by the appellant. It is proved by the evidence of PW.1/complainant and Exts.P1 to P10 that Ext.P1 cheque when presented for encashment was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of the notice Ext.P3, the accused did not repay the amount. The case of the accused is that she had given one signed blank cheque to one Shanmughan and misusing that cheque, Ext.P1 was created. She has completely denied the transaction with the complainant. A Single Bench of this Court in Jose v. P.C. Joy (2008(3) KHC 241 = 2008(3) KLT 512) has held that a mere admission of the signature in a cheque does not amount to admission of execution of the cheque and that the court cannot conclude that the cheque was drawn by the accused to the complainant. Therefore in the present case it cannot be said that the accused has admitted the CRL.A.No.941 of 2002 4 execution of the cheque Ext.P1. Only if the complainant discharges his initial burden regarding the execution of the cheque, the burden will be shifted to the accused as held by a single Bench of this Court in G.Gopan v. Tony Varghese and another (2008(1) KLT 257). In the present case the complainant has not proved the execution of the cheque. Therefore the presumption under secs.118 and 139 of the Negotiable Instruments Act is not available for him. The materials on record are not sufficient to show the discharge of the initial burden on the complainant. 9. That apart, in the present case I am of the view that even if the initial burden is discharged by the complainant, the accused has rebutted the said presumption by examining her husband as DW.1. He has categorically stated that towards the amount borrowed from one Shanmughan, a blank signed cheque of his wife was given to him which was not returned. The lower court has chosen to believe his evidence regarding the case of the accused. I have gone through the evidence of DW.1. I find no reason to disbelieve his evidence. In my view, the lower court is justified in believing his evidence and coming to the conclusion CRL.A.No.941 of 2002 5 that the accused has rebutted the presumption available for the complainant under secs. 118 and 139 of the Negotiable Instruments Act. 10. That apart, this is an appeal preferred against an order of acquittal by the trial court. Unless there is sufficient reason to improbabilise the finding of the lower court or any patent illegality, this court cannot interfere with the findings entered by the lower court. In the facts and circumstances involved in the present case and the materials and findings on record, I have no hesitation to hold that the reasoning assigned by the lower court for acquitting the accused is perfectly legal and valid and I find no reason to interfere with such order of acquittal. Therefore I am of the view that there is no illegality or impropriety in the judgment of the trial court acquitting the accused. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. P.Q. BARKATH ALI, JUDGE mt/-