IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.A.No. 1455 of 2003() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.180/2003 Dated 29/07/2003 CC.1190/1997 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... APPELLANT(S): COMPLAINANT ------------------------- P.L.VARGHESE, S/O.LONAPPAN, PUTHUVA HOUSE, ANAPPARA P.O., ERNAKULAM. BY ADV.MR.SAIGI JACOB PALATTY RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. MOLLY SCARIYA, CHUNGATHU HOUSE, VATTEKKATTU KARA, MOOKANOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.THOMAS JOHN AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1455 OF 2003 = = = = = = = = = = = = = = = Dated this the 1st 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 Judicial First Class Magistrate, Perumbavoor in C.C.1190/97. The brief facts necessary for the disposal of the appeal are stated as follows. It is the case of the complainant that the accused had borrowed a sum of Rs.40,000/- on 31.5.1997 and on the same day had issued a cheque towards the discharge of the liability which when presented for encashment returned with the endorsement insufficiency of funds. Thereafter a statutory notice was issued and prosecution launched. 2. On the other hand the defence appears to be that the accused's husband was running a bus service which used to be stopped in front of the Tea shop conducted by the complainant. It is admitted at an earlier point of time Rs.20,000/- was borrowed, Rs.12,000/- was repaid and Rs.8000/- was remaining to be paid by which time the bus Crl.A. 1455 OF 2003 -2- service has collapsed and financier has seized the vehicle and therefore towards the balance of Rs.8,000/- a blank cheque signed by the wife has been handed over to the complainant that had been used for the purpose of filing this case. The evidence in this matter consists of the oral testimony of PW1 and DW1. On an analysis of the materials the Court below found in favour of the accused and acquitted the accused. It is against that decision the complainant has come up in appeal. 3. The points that arise for determination in the appeal are (1)whether the trial court was wrong in arriving at a decision that the transaction is not proved and (2) is there anything to interfere with the decision rendered by the Court below . Points 1 and 2: 4. Heard the learned counsel for the appellant. Learned counsel very strongly contends before me that the Court below has erred in appreciating the materials for the reasons that there is almost an admission of the transaction between the complainant and the accused. It is also deposed by him since the signature in the cheque is admitted execution is proved and therefore the presumption arise u/s 139 of the N.I. Act Crl.A. 1455 OF 2003 -3- and it has not been rebutted by acceptable evidence by the accused. I have no quarrel about the principles enunciated in the argument but the court has to see what is the factual matrix. Before that the legal position is as follows. 5. It has been repeatedly held by the courts now that the mere admission of a signature in a cheque or a document does not amount to proof of the execution or admission of the execution. The presumption u/s 139 of the N.I. Act will arise only if the execution is proved. Now the case of the complainant is that on 31.5.97 in the afternoon the accused came running to his shop and he had given her Rs.40,000/- and at the same time the accused gave a cheque in favour of him as Saturday evening was a holiday for the bank. The question of admission of execution of this cheque does not arise at all. What is contended by the accused through her husband as DW1 is that there was a previous transaction between the two and there was an amount of Rs.8,000/- outstanding and at that time a blank signed cheque by the wife was given to the complainant. So there is no admission whatsoever with respect to the present allegations in the complaint. Crl.A. 1455 OF 2003 -4- 6. Now I will look into the evidence. Whether it is sufficient to satisfy the conscience of the Court regarding the execution. I had an opportunity to peruse Ext.P1 cheque. The very sight of Ext.P1 cheque reveals that it is written in different inks. I find the words Rs.40,000/- and the figure Rs.40,000/- is written with fountain pen, the word P.L. Varghese and the signature Moly is seen written with Ballpoint pen and the date 31.5.97 is written with another blue fountain pen and so in a cheque there are three inks. There is nothing forthcoming to explain these by the evidence of PW1. PW1, would say in cross-examination that the cheque was brought written and it was signed before him. He would say that when a question was put to him why two types of handwriting and ink? He would pretend ignorance. Ordinary human conduct would not be so in such types of cheques. It is true that a person who issues cheque need not write the name on the cheque. He could make anybody else right as well. When a cheque is written regarding the date the name of the payee and rupees ordinarily even if it is a cheque brought written by an accused it will be only in one and the same handwriting. As stated by me earlier the date is in blue ink, name is in Crl.A. 1455 OF 2003 -5- ballpoint pen and the figure is in black ink. Less said about the better and it creates real suspicion in the mind of the Court. When it is so there is burden on the complainant to remove that suspicion from the mind of the Court. Absolutely nothing is forthcoming. It is also to be remembered the unnaturality of the transaction spoken to by PW1. A lady whose husband used to stop the bus in front of his tea shop comes to him at 2.45 p.m. there was no advance intimation. The moment she comes the complainant who had preserved money for the daughter's marriage immediately hands it over to the accused and gets the cheque. Explanation tendered is that being a Saturday afternoon as bank was not open he has to pay the money. Ordinarily under such circumstances when money is preserved for the daughter's marriage we will not expect him to present the cheque after six days that too to a local Bank. So the evidence tendered by PW1 does not inspire confidence in me to prove that the execution of the cheque is towards the transaction alleged in the complaint. The mere admitted signature in a blank cheque does not amount to admission of the execution of the present cheque. Therefore the presumption does not follow. The evidence tendered by Crl.A. 1455 OF 2003 -6- DW1 appears to be more probable and it is well settled position of law that in 138 cases when both the accused and defence lets in evidence the Court is entitled to look into the preponderance of probabilities of the evidence of both the sides to weigh the evidence. On weighing so I do not feel that the preponderance of probabilities will lie on the case of the complainant. So I find the Court below has perfectly analysed the matter and had arrived at a right decision by acquitting the accused u/s 255(1) Cr.P.C. Therefore the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-