IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 CRL.A.No. 1693 of 2010() ------------------------ CC.300/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): COMPLAINANT ------------------------- K.G.ROY,S/O.GEORGE,KADANGOTT HOUSE, GANDHIGRAM DESOM,IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.C.DILIP RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. 2. SHAJU PAUL,PUTHANANGADI HOUSE, MADAYIKONAM PO,MAPRANAM,THRISSUR DISTRICT. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1693 of 2010 ---------------------------------------------- Dated 2nd September, 2010. J U D G M E N T The appellant was tried for offence under Section 138 of the Negotiable Instruments Act on a complaint filed by appellant. After taking evidence, he was acquitted. The said order is challenged in this appeal by the complainant. 2. According to prosecution, the accused borrowed an amount of Rs.60,000/- from the complainant and in discharge of that liability, he issued a cheque drawn on his account in the bank. On presentation was dishonoured due to “insufficiency of funds” in the account of accused. A lawyer notice was issued, demanding the amount. The accused did not accept the notice and it was returned. The amount was not returned and hence a complaint was filed. 3. PW1, the complainant was examined and Exts.P1 to P6 were marked on the side of the complainant. The accused took up a defence that he had no transaction with the complainant. The accused's wife had a kuri transaction with another kuri company. She bid the kuri in auction and received CRA NO. 1693/10 2 the amount. At that time, two blank cheques belonging to appellant and his wife were given as security. By using one of the cheques, this complaint is falsely filed, it was contended. (The Manager-cum-Managing Director of the said company and the complainant is the same, it was admitted by PW1). 4. On an evaluation of the evidence adduced in this case, the trial court found that the execution of Ext.P1, cheque was not proved by the complainant. It was also found that evidence of PW1 is contradictory. The specific case of the complainant is that Ext.P1 cheque was issued after making all the entries in the cheque, but on a perusal of the cheque, it was found by the court that the ink used for making the entires in the cheque, except the signature was different. 5. PW1 did not remember the date on which the amount was paid to the accused. He deposed that the cheque was written by the accused in his presence, but he did not remember whether all the entries were made in the cheque in his presence. On going through the order of acquittal, it is clear that the execution of Ext.P1 cheque was not proved by the complainant. CRA NO. 1693/10 3 6. Learned counsel for the appellant argued that the accused has not established his case. Since the accused had a different story about the manner in which the complainant obtained the cheque, he should have adduced evidence, it is contended. It is well settled that the execution of the cheque is to be established by the complainant himself and it is not necessary that the accused establish that it was not executed by him. On hearing the appellant's counsel, I find that he was not able to establish why the findings on execution of the cheque are wrong or unsustainable. Hence, I am not inclined to admit this appeal. Appeal is dismissed. K.HEMA, JUDGE. tgs