IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.A.No. 944 of 2001() ----------------------- CC.877/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... PETITIONER:COMPLINANT: ------------------------------------------ K.C.THOMAS, S/O.CHACKO, KAVUMGAL, AYYANKUNNU AMSOM DESOM. BY ADVS. MR.GRASHIOUS KURIAKOSE, MR.GEORGE SEBASTIAN, MR.GEORGE MATHEW. RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. M.K.JANARDHANAN, S/O.ACHU, MAVILAKKANDA HOUSE, MADATHIL P.O., IRITTY VIA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS.MR.V.C.JAMES, MR.GEORGE MECHERIL. R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 944 OF 2001 = = = = = = = = = = = = = = = Dated this the 25th day of May, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.877/97. The case of the complainant is that the accused had borrowed a sum of Rs.2,50,000/- and had issued a cheque bearing dated 12.8.1997 towards the discharge of the liability. When the cheque was presented for encashment it was returned with the endorsement of insufficiency of funds and thereafter a statutory notice was issued and prosecution was launched. 2. The case of the defence is that he had joined a kuri conducted by one Reji Joseph and had bid the auction for Rs.3,75,000/- and at the time of getting the money, as a security he had given two blank signed cheques and a promissory note. According to him one of these cheques had been misused for the purpose of filing the case. Crl.A. 944 OF 2001 -2- 3. The Court below found that the complainant had not succeeded in proving his financial capacity and also the surrounding circumstances which raised a suspicion regarding the genuineness of the claim and therefore dismissed the complaint. It is against that decision the present appeal is filed. 4. Heard the learned counsel for both the sides. The learned counsel for the appellant very strongly contends before me that the signature in the cheque is admitted and that the accused had not send any reply to the notice. When the evidence of PW2 remains there coupled with the following situation it is argued that the Court below has gone wrong in arriving at a conclusion disbelieving the case of the complainant. I had perused the documents, the cheque and the evidence tendered in this case. Ext.P1 is the cheque. Even to a naked eye it can be seen that the date 12.8.1997 is of altogether in a different ink. What the accused had admitted is only his signature in a blank cheque and that too not in favour of the complainant but in favour of one Reji Joseph who was conducting the chitty. It is a settled proposition of law now that the mere admission of a signature in a blank paper Crl.A. 944 OF 2001 -3- or a blank cheque is not conclusive to prove the execution of the document and therefore the presumption u/s 139 of the N.I. Act cannot be followed automatically. A reading of the evidence of PW1 would show that the amount for the purpose of advancement was given to him by his brother who had disposed of some property in 1995 – 1996. It has also come out in evidence that the annual income of the person namely the complainant is only Rs.30,000/-. It is also seen from the evidence that in June, 1997 this person is alleged to have advanced a sum of Rs.2½ lacks to one Joseph George and a case C.C.878/97 was pending at the time of trial of the case in the Court. Or in other words within a span of one month this person had advanced an amount of Rs.5 lakhs whereas his total possession of land is 1 and ½ acres and admittedly his income per annum is only Rs.30,000/-. One cannot find fault with the trial court when it records a finding that PW1 has not succeeded in proving that he is capable of advancing a sum of Rs.2½ lakhs as contended. When there is a challenge regarding the source itself and when PW1 had given an evidence that it was given by his brother nothing stood in the way of the complainant in examining his brother which has not Crl.A. 944 OF 2001 -4- been done. So the source of income is not proved. When the accused has got a case that he had given a blank cheque to one Reji Joseph and it is that cheque which has been used for the purpose of this case the burden is more on the complainant to satisfy the conscience of the Court. It is true that it has been a settled position of law that in 138 cases the Court is entitled to weigh the evidence of the complainant as well as of the defence to arrive at a decision. But the law never shifts the burden to the accused to prove the case of the prosecution. So unless there is some evidence at least to indicate that the transaction had taken place, I cannot find fault with the trial court in arriving at a decision that the complainant has not proved his case and therefore the prosecution has to fail. So under these circumstances I do not find any ground to interfere with the decision of the lower Court and therefore the Crl. Appeal is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 944 OF 2001 -5- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 944 OF 2001 = = = = = = = = = = = J U D G M E N T 25th May, 2009