IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 CRL.A.No. 227 of 2003() --------------------------------- CC.215/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM ........................................................................................... APPELLANT(S): COMPLAINANT -------------------------------------------- N.SUGATHAN, MAYA BHAVAN, KUTTIYAMMOODU, NETTAYAM, THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S): ACCUSED/ STATE ------------------------------------------------- 1. REMANI BAI, MELETHUMELE VAZHATTUKONAM, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.L.MOHANAN FOR R1 SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.227 OF 2003 -------------------------- Dated this the 19th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in C.C.No.215/1999 of Judicial First Class Magistrate's Court-I, Thiruvananthapuram. It was a prosecution initiated u/s.138 of Negotiable Instruments Act. It is the case of the complainant that the accused approached him on 08.08.1999, for a loan of Rs.25,000/- as it was a bank holiday on that day. As the complainant was having Rs.15,000/- with him, he approached one Chandran who is a relative of PW1 and who owed him Rs.10,000/- and there with that amount together had advanced Rs.25,000/- from the house of Chandran to the accused and that she had issued a cheque dated 10.08.1999 towards the discharge of the liability on the same date. When the cheque was presented for encashment it returned back with the endorsement `signature differs'. The complainant has also attempted to establish that the accused did not have sufficient CRL.A.No.227 OF 2003 2 fund on that day and the cash balance was only Rs.443/-. The Trial court found that as the defence was of a total denial, and as there is no sufficient evidence to prove the execution of the cheque complainant can not succeed. It has to be stated that a mere perusal of the signature in the cheque with the signature of the accused in the bank opening account form, would show that there is absolutely no similarity or resemblance. It creates a lot of suspicious in the mind of the court regarding the execution of the cheque issued by the accused in favour of the complainant. When it is the situation, at least some attempt should have been made to prove it by convincing independent evidence. According to the complainant, it was from the residence of Chandran the amount was handed over to the accused. The trial court has clearly stated the non-examination of Chandran is equally fatal to the prosecution. I agree with that observation also made by the court below. So from the over all analysis of the materials, which is available before me, I have absolutely no facitation to hold that there is no acceptable evidence to prove CRL.A.No.227 OF 2003 3 the execution of Ext.P1 cheque issued by the accused in favour of the complainant towards the discharge of the liability. It follows that no relief can be granted and conviction can be made on the basis of such evidence. The appeal lacks merits and the same is dismissed. M.N.KRISHNAN, JUDGE ami.