IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 Crl.L.P..No. 439 of 2011() -------------------------- CC.75/2007 of J.M.F.C., KAYAMKULAM .................... PETITIONER (S): /COMPLAINANT ------------------------------------------ VIDYADHARAN, S/O.KOCHUKUTTY, RESIDING AT SUCHITHRA BHAVAN, ERUVA KIZHAKKUM MURI, PATHIYOOR, ALAPPUZHA DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN SRI.M.S.NISHAD RESPONDENT(S): ACCUSED AND STATE ----------------------------------------------------- 1. NOUSHAD, S/O.THAJUDEEN, RESIDING AT MUKKOTTIL VEEDU, KAYAMKULAM MURI, KAYAMKULAM VILLAGE,NOW RESIDING AT ODAKKAL PADEETTATHIL, ERUVAKIZHAKKU MURI, ERUVA.P.O, KAYAMKULAM. 2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.K.HARILAL FOR R1 SRI.R.GOPAN FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/06/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.L.P.No.439 OF 2011 ----------------------------------- Dated 15th June, 2011 O R D E R This petition is filed to grant leave to file appeal against an order of acquittal. 2. Petitioner is the complainant who filed a complaint against first accused alleging offence under section 138 of Negotiable Instruments Act. After adducing evidence, and on consideration of the evidence, trial court referred to various inconsistencies in the evidence given by the complainant and came to a finding that he failed to establish that Ext.P1 cheque was drawn by accused. The relevant portion from paragraph 5 in the impugned order is extracted below: “When the complainant was cross-examined by the learned counsel for the accused, he stated before the court in unequivocal terms after perusing Ext.P1 cheque that the handwriting in the above cheque is his own handwriting, but the signature is not so. Again PW1 stated that he does not know English. When his attention was drawn to the relevant portion of Ext.P1 cheque, where the amount is stated in English, PW1 stated that he does not know what is stated therein. It is pertinent to not that the payee's name in Ext.P1 is written in Malayalam, with black ink. So also, the date and signature of the drawer are found to be in black ink whereas the amount in words and figures stated in English with blue ink. The CRLP.439/11 2 complainant in his testimony as PW1 miserably failed to explain the person who made the entries in Ext.P1 except the signature of the drawer. At one instance, PW1 stated that the handwriting in Ext.P1 except the signature of the drawer, is his own handwriting. At another instance, he stated that he does not know what is stated in the portion where the amount has been written. Therefore, it has to be concluded that the complainant has miserably failed in establishing that Ext.P1 cheque has been drawn by the accused.” 3. Learned counsel for petitioner submitted that complainant is an auto rickshaw driver and hence his inconsistency in evidence may not be treated seriously. On going through the impugned order and the findings quoted above, I do not find any impropriety or perversity in those findings. The argument that PW1 being an auto rickshaw driver, the discrepancy in his findings may not be treated seriously cannot be accepted, especially on appreciating the facts which were brought out from him in cross-examination. I do not find any reason to interfere with the finding that execution of Ext.P1 cheque is not proved by complainant or the order of acquittal. This petition is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge.