IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 CRL.A.No. 1711 of 2003(D) ------------------------------------- CC.NO.154/2001 OF JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), THIRUVANANTHAPURAM. .................... APPELLANT/ COMPLAINANT: ------------------------------------------ K.RADHAKRISHNAN NAIR, KUZALIKONATHU VEEDU, MUTTADA, THIRUVANANTHAPURAM, (WORKING AS PEON, STATIONARY DEPARTMENT, STATE BANK OF TRAVANCORE, VAZHUTHACADU) BY ADV. MR.S.RAJASEKHARAN NAIR. RESPONDENT/ ACCUSED/STATE: ------------------------------------------------ 1. V.K.PARAMESWARAN, 'RAINBOW', T.C.7/1377(1), KUTTAKAL LANE, VETTAMUKKU, THIRUMALA P.O., THIRUVANANTHAPURAM -6. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1711 OF 2003 = = = = = = = = = = = = = = = Dated this the 20th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-IV, Thiruvananthapuram in C.C.154/01. It was a complaint filed u/s 138 of Negotiable Instruments Act. According to the complainant the accused had borrowed a sum of Rs.1,50,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned with the endorsement of 'funds insufficient' and the 'drawer's signature differs'. It is the case of the defence that in connection with the some other transaction he had given a blank cheque and he has never issued the disputed cheque. In the court below PWs.1 and 2 were examined and Exts.P1 to P7 were marked. On an analysis of the evidence the court found the accused not guilty and acquitted him. It is against that decision the present appeal is preferred. Crl. Appeal NO. 1711 OF 2003 -:2:- 2. The points that arise for determination in the appeal are, (1) Whether there are materials to hold the accused guilty u/s 138 of the Negotiable Instruments Act? (2) Is there anything to interfere with the order of acquittal passed by the Magistrate? Points: 3. Heard. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/- and had issued a cheque towards the discharge of the liability. He had been examined as PW1. It is quite strange to see that even in chief examination only leading questions are put and answers are elicited from the mouth of the witnesses by putting leading questions. It is not really proper. In the cross examination he would depose he is a peon in a Bank and according to him he had raised the funds by pledging the gold ornaments as well as taking loan from the District Co-operative Bank at the rate of Rs.50,000/- for him and his wife. According to him documents are there but it is not produced at all. He admits Crl. Appeal NO. 1711 OF 2003 -:3:- the earlier transaction. When a question was put that blank papers had been given he had denied the same. It is also suggested to him that in the cheque-leaf he had made somebody else sign as the accused and had presented the cheque but it had been denied by him. 4. PW2 is an independent witnesses who had stated that he was present and he had seen the accused signing the cheque. There also only leading questions are put in the chief examination. The witness does not know where is the house of the accused. It is also stated that he was asked to be a witness just two days prior to adduce evidence as a witness. The court below found that neither in the complaint nor before examination of PW1 any witness list had been submitted indicating presence of PW2 as a witness. Therefore the court did not accept his evidence, I feel rightly too. 5. It has to be remembered in this case that the Bank has returned the cheque with an endorsement that the 'drawer's signature differs'. When it is so it is imperative on the part of the complainant to establish that the cheque has Crl. Appeal NO. 1711 OF 2003 -:4:- been executed. Similarly the source of consideration by him also could have been established if it is true. To crown all these things it is seen that the account number shown in the cheque is 6265 and Ext.P5 is the extract of the S.B. Account 6265. it is in the name of one V.K. Kamalakshy. The name of the accused is Parameswran. So it is seen that it is not on the account of the accused a cheque is drawn which is imperative for an action u/s 138 Negotiable Instruments Act. So the court below rightly found that the prosecution has not succeeded in proving the execution of Ext.P1 cheque and further that it is defective for the reason that it is not drawn on an account maintained by the accused. I do not find any grounds to interfere with the well considered judgment of the learned Magistrate and therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1711 OF 2003 -:5:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1711 OF 2003 = = = = = = = = = = = J U D G M E N T 20th August, 2009