IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 CRL.A.No. 1577 of 2003() ---------------------------------- CC.195/2001 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... APPELLANT/COMPLAINANT ---------------------------------------- JOSEPH THOMAS, AREECKAL VEEDU, NEELOOR P.O., IDUKKI DISTRICT. BY ADV. MR.C.J.JOY RESPONDENTS/ACCUSED AND STATE -------------------------------------------------------- 1. SAJI, S/O.DIVAKARAN, KOLLAPPALLIL VEEDU, PARATHODU, IDUKKI DISTRICT. 2. STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. R1 BY ADV. MR.C.K.VIDYASAGAR, MR.T.I.ABDUL SALAM . THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1577 OF 2003 = = = = = = = = = = = = = = = Dated this the 6th day of July, 2009. J U D G M E N T This appeal is preferred against the order of acquittal in C.C.195/01 before the Judicial First Class Magistrate- Erattupetta. It is the case of the complainant that the accused had borrowed a sum of Rs.2 lakhs and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of 'payment stopped by the drawer'. Thereafter a statutory notice was issued which was acknowledged and as payment was not made, prosecution launched u/s 138 of the Negotiable Instruments Act. 2. The contention of the defence appears to be that he had borrowed a sum of Rs.10,000/- in the year 1997 and Rs.30,000/- in the year 1998 and at the time of borrowing the amount had given blank signed cheque as security which had been later misused by the complainant to file this complaint. Crl.A. 1577 OF 2003 -2- It is also submitted that two other cases had been filed on the basis of these cheques before Magistrate Courts. 3. The evidence in this matter consists of the oral testimony of PW1, DW1 and 2 and Exts.P1 to P7 and D1 to D5 were marked. On an analysis of the materials the Court below acquitted the accused. It is against that decision the complainant has come up in appeal. 4. The points that arise for determination in this appeal are: (1) Whether the Court below erred in acquitting the accused with the materials available before the Court? (2) Is there anything to interfere with the decision of the Court? Points 1 and 2: 5. It is the case of the complainant that the accused had borrowed a sum of Rs.2 lakhs and he had issued a cheque for Rs.2 lakhs which when presented for encashment did not get cashed and in spite of notice as the amount was not paid action was initiated. The defence version is that there was a total borrowal of Rs.40,000/-, i.e.Rs.10,000/- in the year 1997 and Rs.30,000/- in the year 1998 and it was at that time the Crl.A. 1577 OF 2003 -3- blank signed cheques had been given as security. The learned counsel very strongly contends before me that there is no dispute regarding the capability of the complainant to advance the amount and that the accused had admitted his signature in the cheque which amounts to admission of execution and no evidence is forthcoming to rebut the presumption and therefore the Court below went wrong in acquitting the accused under the provisions of the Act. It is a well settled principle that mere admission of signature in a blank signed cheque does not amount to proof of execution of the cheque. Similarly, the burden to prove the execution of the cheque is on the complainant and it never shifts unless the presumption is available u/s 139 of N.I.Act. It is also a settled principle that when evidence is adduced by the complainant as well as the accused the Court can weigh the evidence adduced by both the sides to find out the preponderance of probabilities to decide the truth in the case. 6. At the out set I may like to point out here is a very strange transaction attempted to be advanced by the complainant. Within a span of 10 days an amount of Rs.6½ lakhs is advanced to a petty trader and that too without any Crl.A. 1577 OF 2003 -4- documents. The evidence that is made available in this case by the defence would show that he was conducting a small business in a shop which he had closed in the month of August, 2000. In order to prove the same DW1, the landlord has been examined as well as a certificate from the Merchants Association is produced which would establish prima facie that the accused had closed down his business in August, 2000. Here the case of the complainant is that in the month of September or October on three different occasions he had handed over 1½ lakhs, 2 lakhs and 3 lakhs respectively. The reason for the third borrowal is that as it was a Bank holiday, he advanced the amount. It is very interesting to note that though the cheques were alleged to be issued on 10.10.00, 15.10.00 and 20.10.00 with the representation that funds are available with the Bank but the cheques had seen the light of the day only towards the end of January, 2001. It is not an ordinary human course of conduct and in the year 2000 an amount of Rs.6½ lakhs is an exorbitant amount that can be advanced to a petty trader. Now it is deposed by him in so many words that there are accounts with him to show that he had paid these amounts. But none of these documents are Crl.A. 1577 OF 2003 -5- produced. Most probably as a safeguard he would say that he had written it in some chits or on a calender. It has to be also remembered the person who had advanced the money is living as bachelor in a room for which he pays a rent of only Rs.200/-. It has also come out in evidence that he is having about 20 to 30 cases pending before various courts in Kerala u/s 138 of N.I. Act. But he would assert before Court that he is not a money lender and he has not advanced money to the accused for interest. It has also come out in evidence from the evidence of DW1 and 2 that there was a paper publication wherein it has been stated that this man is harassing people by filing false cases. So these factors would clearly clinch one issue that all is not well with the case of the complainant. So the evidence of PW1 alone is available before the Court. I have meticulously read his evidence. Whenever he feels that there is some inconvenience he does not give a straight answer but he would say that he has got accounts but he would never produce it. He would say money which he has advanced within a span of one to three weeks is by way of sale of pepper etc. Nothing is forthcoming in that direction as well. So when we analyze the evidence of PW1 with that of DW1 Crl.A. 1577 OF 2003 -6- and 2 and especially in the back drop of the documents produced by the accused I feel that the case pleaded by the accused appears to be more probable and acceptable. The evidence of PW1 also does not inspire any confidence in me to accept his case. So I find that the Court below has analyzed the evidence only in the right perspective and had arrived at a decision that the complainant has failed to discharge his burden in the case and therefore the accused is entitled to acquittal. I do not find any ground to interfere with the said decision of the Court below. Therefore the Crl.A is dismissed. M.N. KRISHNAN, JUDGE. ul/-