IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.L.P..No. 355 of 2011() -------------------------- STC.1484/2006 of J.M.F.C.-II, MANANTHAVADY .................... COMPLAINANT ------------------------------- VANAJA SCARIYA, W/O.SCARIA, AGED 45 YEARS, THOPPUVEETTIL HOUSE, PAYYAMPALLY AMSOM, VEMOM DESOM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. M.T.CHANDRAKUMAR, S/O.KANTHASWAMI, AMBALAKKANDY HOUSE, VARADOOR P.O., POOTHADI AMSOM DESOM, MEENANGADI, SULTHAN BATHERI. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No. 355 of 2011 ----------------------------------------------- Dated this 24th day of May, 2011 ORDER This petition is filed for grant of leave to file appeal against an order of acquittal passed by the Magistrate Court. 2. Petitioner is the complainant. According to the complainant, the accused issued a cheque dated 5.6.2006 for an amount of Rs.6.65 lakhs towards the amount payable to the complainant. When the cheque was presented, it was dishonoured for insufficiency of funds. Therefore, a lawyer notice was issued demanding payment. The payment was not effected and hence, the complaint was filed. 3. To prove the prosecution case, PW1 was examined and Exts.P1 to P8 were marked. The accused denied execution and the transaction and examined DWs 1 to 4 and marked Exts.D1 to D6. The trial court after consideration of the evidence held as follows: “At the outset learned counsel for the accused contended that the complainant failed to prove the transaction, passing of consideration and execution of Ext.P2 cheque. In a case like this [Crl.L.P.355/11] 2 nature, germane pint for consideration is whether PW1 has succeeded to prove the execution of cheque. The contention of the learned counsel for the complainant is that the possession of a signed cheque is one of the strong circumstances to prove the execution. However, it is significant to note that mere admission of signature alone is not sufficient to prove the execution.” 4. I do not find any reason to interfere with the above findings, since it appears that those findings are consistent with the evidence on record. In the absence of proof regarding execution of cheque, offence under Section 138 of N.I. Act will not be attracted. The accused also took up a defence that Ext.P2 cheque was executed on a different occasion and on different circumstances. He also examined DWs.1 to 4 and marked Exts.D1 to D6. The trial court analysed the evidence and defence version and found that the defence evidence would certainly probabilise the contention of the accused. The finding is supported by evidence. I do not find any reason to interfere with the impugned oder or grant leave to file appeal. This petition is dismissed. K.HEMA, JUDGE. krs.