IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 Crl.L.P..No. 114 of 2011() -------------------------- ST.187/2009 of J.M.F.C. - II, ETTUMANUR .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ P.G.AJITH KUMAR, PULIYANPALLIL HOUSE, ETTUMANOOR P.O., KOTTAYAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER P.N.GOPALAKRISHNAN, PULIYANPALLIL HOUSE, ETTUMANOOR P.O., KOTTAYAM. BY ADV. SRI.V.N.SASIDHARAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. M.T.JOHN, MULAMOOTTIL HOUSE, PULINTHANAM, KUNNANTHANAM P.O., MALLAPPALLY, PIN-689 585. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No.114 of 2011 ----------------------------------------------- Dated 11th February, 2011. O R D E R This petition is filed for leave to file an appeal against an order of acquittal. 2. The petitioner filed a complaint against first respondent before the Magistrate Court, alleging offence under Section Section 138 of the Negotiable Instruments Act. He examined PW1 and PW2 and marked Exts.P1 to P8 to prove its case. The accused denied his liability and also execution of the cheque. The trial court, on analysis of the evidence found that execution of the cheque is not proved as well as the source of PW1 to lend the alleged amount of Rs.35,000/- is also not proved. 3. Learned counsel for petitioner argued that execution of the cheque and the transaction are admitted by accused. It is also argued that evidence was adduced by examining PW1 and PW2 to prove his case. The complainant's father was examined to say that he handed over Rs.10,000/- to PW1 and he had sufficient money to pay the amount to appellant. It is also submitted that the fact that accused took Crl.L.P. No.114/11 2 up a contention that the blank cheque was issued as a security itself will indicate that there was some liability to be discharged on his part. Therefore, the findings are unsustainable, it is argued. 4. On hearing petitioner's counsel and on going through the order under challenge, I find that the trial court entered a finding that the defence set up by the accused that blank cheque leaf was given as a security cannot be said to be improbable. Such findings are entered after analysing the evidence in detail. In paragraph 14, the trial court referred to the evidence of PW2 and the difference in ink used in Ext.P1, and came to a finding that the cheque was blank when it was handed over to PW1. The relevant observations are as follows : “PW2 stated that accused issued the cheque after filling up the entries therein, in his presence. However, on perusal of Ext.P1 cheque, the signature appears to be put with different pen with a different ink. PW2 stated that accused had used only one pen to fill up the entries including the signature. Then it is not explained as to how the signature happened to be put with a different pen. This aspect would show that the cheque was blank when it Crl.L.P. No.114/11 3 was handed over to PW1. Hence the fact that accused had issued Ext.P1 for the discharge of the above debt also stands cluded with doubt. In the light of the evidence adduced the case of the accused that he had issued the cheque as a security cannot be said to be improbable.” 5. I do not find any perversity in the findings of the trial court in coming to the conclusion that the cheque was issued in blank form and defence is probable. On a reading of the judgment as a whole, it will be clear that execution of the cheque is not admitted, as contended by petitioner's counsel. It is also seen that accused had denied his liability and challenged the source of income. Therefore, the argument that the transaction is admitted, cannot be accepted. In paragraph 13 of the order, the trial court considered the challenge on source of income of the petitioner and relevant portion from the impugned order is extracted as hereunder : “First contention of the accused is that PW1 had no source to give the accused the alleged amount. PW2 stated that his son PW1 is working in Cochin shipyard and that he (PW2) had given Rs.10,000/- to his son to be given to the accused and that his son arranted Rs.25,000/- to be given to the accused. PW2 also stated that there are documents Crl.L.P. No.114/11 4 to prove that PW1 had the above source to lend the amount. However no documents are produced to prove the source of PW1. When source of PW1 to lend the alleged amount is challenged, the burden is on the complainant to prove the same. In this case there is only the oral evidence of PW2 to show that PW1 had the source to lend the alleged amount. Documentary evidence which is available must be produced to prove a fact which is deposed orally. Since best evidence has not been adduced, I find that complainant has failed to prove that he had the source to lend the alleged amount.” 6. I am satisfied that the trial court has considered the evidence in the right perspective and come to a finding that petitioner had no source of income to lend Rs.35,000/- and also that the cheque was not executed, as alleged by the prosecution. Learned counsel for petitioner argued that accused had no case regarding the difference of ink etc. and hence, the trial court ought not to have entered a finding against petitioner based on such discrepancy. This argument can only be rejected as meritless since the trial court is bound to look into the evidence and take a decision whether execution is proved or not. The trial court was only referring to the Crl.L.P. No.114/11 5 evidence to satisfy itself whether the contention raised by the complainant that the cheque was executed is proved or not. I do not find any reason to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs