IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.L.P..No. 487 of 2009() ------------------------------------- CC.743/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT, CHENGANNUR .................... PETITIONER (S): COMPLAINANT --------------------------- NANDAKUMAR, S/O. NANU, SARASWATHY ILASAM, KARACKADU P.O., MULAKUZHA VILLAGE BY ADVS. MR.DINESH MATHEW J.MURICKEN MR.P.J.STEPHEN RESPONDENT(S): ACCUSED --------------------------- 1. KUNJACHAN CHACKOCHAN, PARACKAL VEEDU PALACE ROAD, KAYAMKULAM. 2. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADVS.MR.R.RAJASEKHARAN PILLAI FOR R1 SMT.SABINA JAYAN FOR R1 BY PUBLIC PROSECUTOR MR.THOMAS JOHN AMBOOKEN THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl.L.P. NO. 487 OF 2009 = = = = = = = = = = = = = = = Dated this the 1st day of July, 2009. J U D G M E N T This is a special leave petition preferred against the order of acquittal in a S.138 of Negotiable Instruments Act case in C.C.743/05 by the Judicial First Class Magistrate, Chengannur. It is the case of the complainant that the accused had borrowed a sum of Rs.2 lakhs and towards the discharge of that liability had issued a cheque dated 25.7.05 which when presented for encashment returned with the endorsement of insufficiency of funds. After the statutory notice prosecution was launched u/s 138 of N.I.Act. The accused would contend that a cheque was issued in favour of the complainant in Bahrain during 1997 when the accused was in urgent need of money and thereafter the Court at Bahrain convicted him and thereafter he was sent back to Trivandrum Airport by the Behrain jail authorities. He had disputed the execution of Ext.P1 cheque in 2005. In a case of this nature it was Crl.L.P. 487 OF 2009 -2- imperative for the complainant to mount the box and give evidence in support of his contention. He did not chose to do so and examined his brother. Admittedly the loan transaction had taken place at Bahrain. It has to be proved that there was a loan transaction between the complainant and the accused and it was towards the discharge of that liability cheque has been issued. What is stated by the accused is there was a loan transaction and it ended in a proceeding before the Bahrain Court where he was convicted. He has no case that he had issued any cheque towards the discharge of the liability in 2005. One of the important ingredients that can be looked into is that the cheque which is seen issued is supplied to the accused from the Bank in the year 1993. That cheque leaf is preserved to be used in 2005, if the complainant's case is true. So there are suspicious circumstances surrounding the transaction and under such circumstances there is burden on the complainant to prove the execution of the cheque. As stated by me the power of attorney holder is not competent to prove those facts and so Crl.L.P. 487 OF 2009 -3- there is no much evidence in support of the same. The question of presumption u/Ss.118 and 139 of the N.I. Act will come into play only when execution is proved. Here I am not satisfied that the execution is proved for the reason stated above and therefore I do not find any materials to interfere with the decision rendered by the learned Magistrate in this case. Therefore the Crl.L.P. Lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-