IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 CRL.A.No. 1988 of 2005 --------------------------------- [CC.NO.1228/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOTTAYAM DTD. 01/10/2005] .................... APPELLANT/COMPLAINANT: ----------------------------------------- SAJIMON,S/O.V.N.VASUDEVAN, NARAYANA VILASAM,THONDANAD P.O., KOTTAYAM DISTRICT. BY ADVS. SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK. RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. JOSEPH,S/O.CHACKO, VATTAKUNNEL TEXTILES,PONKUNNAM P.O. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.V.G.ARUN. R2 BY PUBLIC PROSECUTOR SRI. ALEX.M.THOMRA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1988 of 2005 --------------------------------- Dated this the 11th day of August 2011 J U D G M E N T The complainant is the appellant. The complaint filed by him against the first respondent/accused alleging offence punishable under Sec.138 of the N.I.Act ended in acquittal under Sec.255(1) Cr.P.C. This appeal is filed against that judgment of acquittal. 2. The case of the complainant is that the accused had borrowed Rs.75,000/- in February, 2003 and to discharge that debt Ext.P1 cheque dated 15.6.2003 was issued by the accused to the complainant. The cheque was dishonoured due to insufficiency of funds. On receipt of the intimation from the bank, statutory notice was sent to which a reply (Ext.P6) was sent by the accused denying the liability. As the amount was not paid, the complaint was filed. Crl.A.No.1988 of 2005 -: 2 :- 3. The complainant got himself examined as PW1 and Exts.P1 to P9 were marked. The accused and two witnesses were examined as DW1 to DW3 and Exts.D1 to D3 were marked on the side of the accused. 4. The case of the accused is that there were transactions between him, DW1 (Adv.Biju Gopal) and his brother-in-law Anil Kumar and with regard to those transaction three signed blank cheque leaves were given to DW1 and one of those cheque leaves was misused by Adv.Biju Gopal, one of his close friends and thus the complaint was filed. 5. The learned counsel for the complainant/appellant would submit that the learned Magistrate has given over much importance to the evidence given by Dws.2 and 3 to find the complainant's case untrue. Though DW1 was examined by the accused, he did not support the accused whereas he stated that Ext.P1 cheque has nothing to do with the transactions referred to by the accused in Ext.D2 Crl.A.No.1988 of 2005 -: 3 :- petition which was given by the accused to the Dy.S.P. As such the learned counsel for the complainant submits that the evidence given by DW1 that Ext.D1 was signed in his presence by the accused should have been accepted and it should have been found that Ext.P1 was issued in discharge of a legally enforceable debt/liability. 6. This contention has been stoutly resisted by the learned counsel for the respondent/accused. It is submitted that though DW1 did not support the accused, the answers given by him when he was cross examined would show that he and his brother-in-law had been to the office of the Dy.S.P. pursuant to Ext.D2 petition filed by the accused (DW2). It was admitted by DW2 also that the matter was settled before the police and he (DW2) also had signed in the concerned register. Relying upon these factors the learned counsel for the accused would submit that since DW1 could not succeed in his attempt to extract money from the accused adopted an ingenious method, making use Crl.A.No.1988 of 2005 -: 4 :- of the signed blank cheque leaves given to him by the accused. It is further argued that after thoroughly brooding over the matter, an idea was cropped up in his mind to get the assistance of his friend for filing this complaint and for that purpose the signed blank cheque leaf which had been given by DW2 was misused by him. It is seen that except the signature found on Ext.P1 other matters are seen type written. PW1 did not say anything about that fact in the 'proof affidavit' filed by him in lieu of chief examination or in the statutory notice sent to the accused. The fact that it was type written was spoken to by him for the first time when Ext.P1 was confronted to him. He then stated that the cheque was type written and brought by the accused himself. On a scrutiny of the evidence given by PW1, it does not inspire the mind of the court. In all probability, Ext.P1 happened to be type written because the cheque leaf was an old one. It was in order to avoid spreading of ink the idea of getting it type written was thought of by the maker Crl.A.No.1988 of 2005 -: 5 :- of the document, it is argued. Of course, it is contended that if a ball point pen can be used to avoid the spreading of ink. Even in the signature portion there is slight spreading of ink. Be that as it may, a close scrutiny of Ext.P1 does not infuse confidence in the mind of the court that it was executed for discharging the debt/liability. No other independent evidence was adduced to prove the execution of Ext.P1 cheque. Simply for the reason that Ext.P1 contains the signature of the accused no presumption can be had that it was duly executed. The burden is on the complainant to prove due execution of the cheque. The presumption under Sec.139 would arise only when there is proof of execution of cheque. By the yardstick of preponderance of probabilities if we approach the issue it can be found that the case put forward by the accused that the cheque leaf which was used for creating Ext.P1 was the one among the three cheque leaves which were stated to have been given by the accused to DW1 or his brother in Crl.A.No.1988 of 2005 -: 6 :- law. The evasive answers given by DW1 denying the transaction made by the accused also does not inspire confidence. DW3 was examined to prove Ext.D2 and the action taken pursuant there to. On a resurvey of the entire evidence, I find that the learned Magistrate has rightly found that the complainant failed to prove that Ext.P1 was issued by the accused in discharge of a legally enforceable debt/liability and therefore, the order of acquittal is to be confirmed. In the result, this Crl.A. is dismissed confirming the order of acquittal passed by the learned Magistrate. N.K.BALAKRISHNAN, JUDGE. Jvt