IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Crl.L.P..No. 1042 of 2010() --------------------------- ST.1248/2006 of J.M.F.C.-VIII, TRIVANDRUM .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M/S.THE THIRUVITHAMCORE CO.OP.SOCIETY LTD. D,NO.1530,FORT,THIRUVANANTHAPURAM. REPRESENTED BY ITS SECRETARY. BY ADV. SRI.D.SAJEEV RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. M.GOPAKUMAR, JAYA NIVAS, S.P.I 812, PEROOR, KARYAVATTOM P.O.,THIRUVANANTHAPURAM 695 526. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.1042 of 2010 ----------------------------------------------- Dated 29th October, 2010. O R D E R This petition is filed for leave to file an appeal against an order of acquittal. 2. Petitioner is a co-operative society. It has filed a complaint against the second respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. As per the averments in the complaint, a cheque was issued for an amount of Rs.56,900/- drawn on the account maintained by the accused for repayment of the debt due to the complainant. On presentation of the cheque, it was dishonoured with the endorsement “funds insufficient”. Statutory notice was issued, but the notice was returned. The complainant filed the complaint after complying with all legal formalities. 3. The complainant examined PW1 and marked Exts.P1 to P5 on his side. The trial court found that the complainant has not proved the execution of the cheque and hence the presumption under Section 139 of the Negotiable Instruments Act will not lie. 4. Learned counsel for the petitioner submitted that Crl.L.P. No.1042/10 2 the accused has not sent any reply to the notice issued to him. It is also submitted that the accused has no case that he has not written in the cheque or that he has not executed the cheque. He admitted his signature in the cheque. The trial court has noticed the difference in the ink and found that the complainant failed to prove execution of the cheque. Those findings cannot be sustained, it is argued. 5. On going through the order under challenge, I find that the trial court has considered the question whether the cheque was executed and whether it is a cheque under Section 6 of the Negotiable Instruments Act in the proper perspective. Reasons are also shown in paragraphs 7 and 8 and it was held that the complainant did not adduce any sufficient evidence to establish that Ext.P1 cheque was executed by the accused. It is observed by the trial court in paragraphs 7 and 8 of the order of acquittal as follows : “The complainant has no case that accused has written the cheque. The complainant obtained blank cheque. In cross examination page No.6 PW1 has conceded that the Crl.L.P. No.1042/10 3 accused has not written the cheque. Execution is something different from signing the document. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ext.P1 cheque written in blue ink but the signature of the accused written with black ink and there is no explanation from the side of complainant how it was happened. Absolutely there is no evidence to prove the execution of the cheque by the accused as per the provisions of Section 6 of the N.I.Act. The writings in the Ext.P1 cheque is different from signature put in the Ext.P1 cheque which proved that except the signature other writings written by somebody else and not by the accused. The accused has denied the execution of the cheque and no evidence to prove the execution of the cheque by the accused. Therefore I find that the complainant failed to prove the execution of Ext.P1 cheque u/s.6 of the N.I. Act and no offence proved against the accused u/s.138 of N.I.Act. Points found accordingly.” 6. I do not find any infirmity in the findings entered into by the trial court or the reasons stated therein. Learned counsel for the petitioner submitted that the accused was ready for a mediation and a petition was also filed under Section 311 of the Code. That means, he is owing some amount to the Crl.L.P. No.1042/10 4 complainant and the complainant's case is true, it is added. I am unable to agree with this contention. The fact that a person has come forward for a settlement is not sufficient to hold that the cheque is executed by him. 7. As per law, the burden is on the complainant to establish that the cheque is executed by the accused and that it falls under Section 6 of the Negotiable Instruments Act. The court below has shown valid reasons why it has not accepted the case of the complainant that Ext.P1 cheque was executed by the accused. There is no infirmity, impropriety or perversity in the findings of the trial court and hence, there is no ground to grant leave to file the appeal. This Leave Petition is dismissed. K.HEMA, JUDGE. tgs