IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 1087 of 2003() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.54/2003 Dated 05/06/2003 CC.389/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................... APPELLANT(S): COMPLAINANT ------------------------- GEORGE THOMAS, S/O. K.V.THOMAS, AGED 48, NADUVAKATTU HOUSE, KAPPADU P.O., KANJIRAPPALLY. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. K.K.RAJU, AGED 32, ERRICKAL HOUSE, PANACHEPPALLY P.O., KANJIRAPPALLY. BY PUBLIC PROSECUTOR MR.C.M.NAZAR BY ADVS. MR.V.P.REGHURAJ FOR R2 MR.R.PREM SANKAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1087 OF 2003 = = = = = = = = = = = = = = = Dated this the 23rd day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-I, Kanjirappally in C.C.389/01. It was a case initiated u/s 138 of the Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of insufficiency of funds. When a notice was issued it was not received by him. Since there was failure to pay the amount prosecution has been launched u/s 138 of the Act. The defence appears to be that the cheque leaf was stolen from the accused and a false case has been initiated. 2. In the trial court PW1 was examined and Exts.P1 to P10 were marked. On an analysis of the materials the trial court arrived at a decision that the execution of the cheque Crl.A. 1087 OF 2003 -2- has not been proved and hence acquitted the accused u/s 255 (1) of Cr.P.C. It is against that decision the appeal has been preferred. 3. The points that arise for determination in the appeal are; (1) Whether the Court below has erred in finding that the accused was not guilty u/s 138 of the N.I. Act? (2) Is there anything to interfere with the decision rendered by Court below? Points: 4. It is the case of the complainant that the accused had borrowed a sum of Rs.50,000/- and had issued a cheque towards the discharge of the liability and when presented for encashment returned with the insufficiency of funds that had given raise to the cause of action to launch a prosecution u/s 138 of the N.I. Act. PW1 is the complainant. It is the version of PW1 that the accused had borrowed the amount in December, 2000 and had issued a cheque dated 16-4-01. It is specifically deposed by him that all the writings in the cheque are that of the accused and it was written and signed in his presence and before him. When in cross examination he was Crl.A. 1087 OF 2003 -3- confronted with the difference of ink he would submit that the date was put before it was brought to him and subsequent writings were done in his presence. I had perused the disputed cheque. The date is written in green ink, the body and signature does not appear to have been written at the same point of time even with respect to the signature there is some difference between the specimen signature and the signature in the cheque. I am conscious of the fact that the Court is not an expert to compare the disputed handwriting but when there is a total denial of the execution of the cheque and the case is that it had been stolen from the accused there was a mandatory duty cast upon the complainant to prove the execution of the cheque. Even if the signature in the document is admitted it will not amount to proof of the execution of the document. So far as this case is concerned there is no such admission even regarding the signature. So it was a paramount duty of the complainant to examine and satisfy the conscience of the Court regarding the execution of the cheque. It is deposed by him that his wife was available when the cheque was written. She was also not examined. So the materials available would establish that the whole Crl.A. 1087 OF 2003 -4- transaction is of a suspicious nature. 5. Now at this point the learned counsel also strongly contends before me that an opportunity be given to send the cheque for expert's opinion. I think at this point of time such a request cannot be allowed for the reason it will work out injustice to the accused. From the very defence there is a total denial of the execution of the cheque. The complainant should be able to adduce evidence to convince the Court regarding the execution. Without doing it further prayer for a remand cannot be entertained. I am not inclined to grant an opportunity. The evidence of PW1 is not sufficient to prove the execution of Ext.P1 and therefore I do not find any mistake committed by the Court below in acquitting the accused u/s 255(1) Cr.P.C. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-