IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1430 of 2003(B) ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRL.L.P.277/2003 Dated 12/08/2003 CRA.477/2000 of ADDL.SESSIONS COURT, NORTH PARAVUR (CC.625/93) ..................................................................... APPELLANT(S): RESPONDENT/COMPLAINANT ----------------------------------------------------------------- A.G.VASUDEVAN, AMBALAPPATT HOUSE, VELLARAPILLY SOUTH, SREEMOOLANAGARAM. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): APPELLANT/ACCUSED AND STATE ---------------------------------------------------------------------------- 1. K.D.BABY, S/O.DEVASSY, KOLENCHERRY HOUSE, SREEMOOLANAGARAM, ALUVA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.K.S.AJAYAGHOSH FOR R1 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1430 OF 2003 -------------------------- Dated this the 6th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the judgment passed by the Addl. Sessions Judge, North Paravur, in Crl.A.477/00. The said appeal had arisen out of the conviction and sentence passed in C.C.625/93 of Judicial First Class Magistrate Court, Perumbavoor. The appellant before the court is the complainant and I am referring to the complainant and accused as in the original trial for the purpose of clarity. It is the case of the complainant that the accused had borrowed a sum of Rs.1,75,000/- and towards the discharge of liability he had issued a cheque which when presented for encashment returned with endorsement ` insufficiency of funds'. After the notice, as the amount was not paid prosecution has been launched. It is the case of the accused that he has not borrowed any amount and that the complainant had stealthily removed one of his cheque leaves and created a cheque and 2 CRL.A.No.1430 OF 2003 filed a false case. The Trial Court had found, in favour of the complainant but the Appellate Court had reversed the judgment and set aside the conviction and sentence. The learned Sessions Judge had given the following reasonings for interference with the conviction and sentence. It was the contention of the accused that the complainant was only a driver and therefore he did not have the potential to advance a sum of Rs.1,75,000/-. It is also argued before the court that the complainant was facing a revenue recovery proceeding from the Union Bank of India and also there were proceeding under the Sales Tax Act for recovery of the arrears of tax. It has also been pointed out that one Jose had filed a case u/s.138 of Negotiable Instruments Act, against the complainant for realisation of Rs.40,000/-. It is further stated that in the absence of specific evidence to prove the capacity to advance, the court should not lightly to find in favour of the complainant. The source of consideration spoken to, by the complainant is that he had some transaction with one Pratapan, and that Pratapan had 3 CRL.A.No.1430 OF 2003 returned a sum of Rs.1,50,000/- on 4.3.1992 and on 5.3.1992 this amount had been paid to the accused towards the liability . But except the mere ipsedixit of the complainant absolutely no evidence is forthcoming in that regard. The documents produced in the form of Ext.D1 would show, regarding a case initiated against the complainant as C.C.512/1993. Exts.D5 and D6 would substantiate the contention that, revenue recovery proceeding were initiated against the complainant at that specific point of time. When it is specifically contended that the complainant has no wherewithal to raise the fund, it was incumbent upon the complainant to prove the same. It was also held that there was no necessity and chances were remote for such a borrowal. According to the accused at the time of alleged transaction materials would reveal that, they were not in good terms. Ext.D8 is the complaint submitted by the complainant against the accused, alleging that the accused purchased landed property undervaluing the same. Therefore the complainant preferred a complaint. He has admitted it when 4 CRL.A.No.1430 OF 2003 he was cross examined. The evidence of DW6 also would throw some light to the effect that, on the date of complainant's sister's marriage when the accused visited the complainant's house with the family, he was abused and it hurt him. So it is another indication to point out the improbability of the transaction. Then the learned Sessions Judge found that the alleged cheque is of the year 1993and the accused has changed his signature in the year 1991. What is seen in Ext.P1 is a different signature. Therefore the change of signature is established by producing Ext.D7 series of documents as well as examination of the witnesses. I had also perused the cheque marked as Ext.P1. The date, the name and the figure (both in words and figures) are written in a different ink and the signature is altogether in a different ink. It can also be seen even with a naked eye that it is not a contemporaneous writing but it is subsequently filled for the reason that the ink had spread. When confronted with a difficult situation of this nature, the complainant would say he did not know who had written the 5 CRL.A.No.1430 OF 2003 cheque but the signature was put in his presence. The reasonings given by the learned Sessions Judge, according to me appears to be proper and correct. The capacity of the person to advance the amount at that point of time etc. totally goes against the case of the complainant. To crown all these things on the basis of the same cheque, a civil litigation was also filed which ended in dismissal of the case. I am conscious of the fact, that may not be binding the judgment but it is a material that can be looked into, along with other material documents and evidence available in the case. Therefore I do not find any ground to interfere with the decision rendered by the learned Sessions Judge in reversing the judgment of the Trial Court. Therefore the appeal lacks merits and the same is dismissed. M.N.KRISHNAN, JUDGE ami.