IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 CRL.A.No. 925 of 2011() ----------------------------- AGAINST THE JUDGEMENT IN CC.326/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVOOR .................... APPELLANT(S): PETITIONER -------------------------------------- SNEHALATHA, RESIDING AT GARDENVILLA, MANPALLIKUNNOM CHERRY, CHATHANNOOR P.O.,KOLLAM. BY ADV. SRI.R.S.KALKURA SRI.HARISH GOPINATH RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SOMALATHA, RESIDING AT SAMEER VILASOM NEDUNGOLAM PO, PARAVUR, KOLLAM. PUBLIC PROSECUTOR ME. K.S SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.925 OF 2011 ----------------------------------- Dated 15th June, 2011 J U D G M E N T This appeal is filed against an order of acquittal. 2. Appellant is the complainant. He filed a complaint against second respondent alleging offence under section 138 of Negotiable Instruments Act, on the allegation that accused borrowed an amount of Rs. 2,00,000/- from her and issued a cheque -Ext.P1 in discharge of the said amount. On presentation to the bank, cheque was dishonoured. A notice was sent demanding money, but no payment was effected. Hence the complaint. 3. In support of complainant's case, PW1 was examined. Ext.P1 to Ext.P6 were marked. Accused denied the transaction and execution of cheque and court entered a finding that claim of complainant regarding passing of consideration is disproved. Trial court found that accused brought in evidence, ledger folio of account of complainant for the relevant period and marked as Ext.D1. It was also held that Ext.D1 will reveal that there was no Crl.A. No.925/11 2 amount in the account of complainant during the period in which transaction took place. Complainant has no explanation for non- availability of money in her account at the relevant time. 4. Learned counsel for appellant argued that no money was given to accused by way of cheque and that itself is an assurance for payment of money. It is also submitted that Ext.D1 does not relate to the account from which complainant has drawn the money for giving the money to accused. He handed over the photocopy of evidence of PW1 and submitted that his evidence itself will make it clear that complainant has proved her case regarding transaction. 5. On hearing appellant's counsel and on going through the impugned order and evidence of PW1, I cannot find any perversity, illegality or infirmity in the order. PW1 stated that she has no job. She is only a housewife. She also stated that “currency notes” were given to accused but in cross examination she stated that she handed over cheque for Rs.2,00,000/- and that accused had withdrawn the amount from the account on the same day and details of account will reveal these facts. But details of account were not produced by complainant. Referring to evidence given by PW1 and non production of account details, Crl.A. No.925/11 3 trial court entered the following finding in paragraph 9 of the impugned order: “9. Accused brought in evidence the ledger folio of the account of the complainant of the period from 1.1.00 to 5.12.05, marked as Ext.D1, which covers the relevant period in which the transaction involved in this case took place. On a perusal of D1 it can be seen that there was no amount in the account of the complainant during the period in which the transaction in this case is allegedly took place. This no doubt shatters her claim of paying of consideration to the accused by way of cheque and that she withdrew the amount on that day itself. Complainant has no explanation as to the non-availability of amount in her account on that relevant time in her account. This makes the very claim of passing of consideration to the accused in return of the P6 cheque to stand disproved, making her entire case to collapse.” 6. Learned counsel for complainant argued that Ext.D1 was not marked through any witness. Therefore, no reliance can be placed on Ext.D1. He also argued that accused did not take any step to produce account details. I can only reject this argument, on a reading of evidence of complainant, PW1. The burden is on the complainant to prove the requirements of offence under section 138 of Negotiable Instruments Act and the burden is not on the accused. When the transaction itself is under challenge, the complainant ought to have proved that cheque was drawn for Crl.A. No.925/11 4 the discharge of the money which accused allegedly owe to complainant. This was not done. There is no reason to admit this appeal. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge