IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 CRL.A.No. 47 of 2003() ------------------------------- S.T.12/2000 OF CHIEF JUDICIAL MAGISTRATE, MANJERI ................................................... APPELLANT(S): COMPLAINANT -------------------------------------------- N. MUSTHAFA, S/O. ITHALU HAJI, NEERULPPAM HOUSE, KALLIDUMBA EDAVANA, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): ACCUSED AND STATE --------------------------------------------------------- 1. KUNNATHODI MAJEED, S/O. ALAVI KUTTY, CORAKAM, KEEZHMURI, VENGARA P.O., MALAPPURAM DISTRICT. 2. THE STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.BABU S. NAIR FOR R1 SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.47 OF 2003 -------------------------- Dated this the 9th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal passed by the Chief Judicial Magistrate, Manjeri, in S.T.12/2000. It is the case of the complainant that the accused had borrowed a sum of Rs.80,000/- and had issued a cheque bearing date 28.6.99 which when presented for encashment returned with endorsement `stopped payment by the drawer' and thereafter statutory notice was issued and as the amount was not paid, action initiated u/s.138 of Negotiable Instruments Act. The defence is as follows :- The complainant's brother is one Khidder. One Abdu was running a kuri transaction in which Khidder had joined. Abdu's kuri crashed down and then Khidder went to his house and created problem. When Abdu was prepared to issue a cheque Khidder demanded the cheque from the accused. Accordingly, two blank cheques were given as security by the accused to satisfy Khidder. CRL.A.No.47 OF 2003 2 According to the accused, it is one of those cheques that has been utilised for filing the case. The trial court found that the execution has not been properly proved and even the presumption is rebutted and it is not in favour of the complainant. I have meticulously gone through the documentary as well as oral evidence in this case. DW1 has got no consistent case at all. In the opening paragraph in the chief examination, he would depose that the amount was given on 10.2.99 and the cheque was issued one week prior to 28.6.99 with that date. But when he was cross examined he would assert and replied that the cheque was given on 10.2.99 and the amount was advanced 2 ½ months prior to that date. So the very basis of the case set up by the complainant, has disappeared. Now, I may refer to the other materials available. When the counsel for the accused questioned about the receipt of a reply notice to his lawyer notice, he pleads ignorance. He admits that Khidder is his brother. But he pretends ignorance and says, he does not know K.T.Abdul Majeed, who is none CRL.A.No.47 OF 2003 3 other than this accused. When questions were put with respect to the transaction between the Khidder and Abdu, the complainant pleads total ignorance. The complainant has further admitted that he had written the figure in the cheque and the accused signed thereafter, on the ground that the accused does not know to write english. But at another portion he would say that, the date 28.6.99 was written from his house and it was he who had written the same. It has to be remembered that at one portion, the complainant would depose that he had only written the figures in english, but in another portion he would say he had written the date also. So it has to be stated that the complainant is not prepared to speak truth before the court and it is in this back ground the matter has to be analysed. The total inconsistency with respect to the advancement and issuance of the cheque coupled with the factor that, the cheque had been written by himself and in the absence of any evidence that it is written simultaneously, it has to be held that the proper execution of Ext.P1 cheque is not proved by the complainant. CRL.A.No.47 OF 2003 4 On the contra, the case suggested by the accused is atleast substantiated by the private complaint filed by him and the evidence of Dws.1 and 2 would show about the nature of the complaint filed by the accused before the police. So on an over all analysis of the entire materials I am also convinced that, the complainant has failed to satisfactorily establish regarding the borrowal of the amount by the accused from him and further had not proved that Ext.P1 is a cheque issued by the accused towards the discharge of the liability. So there is nothing to interfere with the decision rendered by the court below and therefore appeal fails and the same is dismissed. M.N.KRISHNAN, JUDGE ami.