IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 CRL.A.No. 1704 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.828/2010 Dated 10/08/2010 CC.49/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II (MOBILE),ALAPPUZHA .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- BONY VARGHESE, COMPANYCHIRA HOUSE, PUNNAMADA, AVALUKUNNU P.O., ALAPPUZHA. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. ALEYAMMA.C.J., W/O.SEBASTIAN PADINJARE VEEDU, THATHAMPALLY P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1704 of 2010 ----------------------------------------------- Dated 6th September, 2010. JUDGMENT This appeal arises from an order of acquittal of first respondent. The alleged offence is under Section 138 of the Negotiable Instruments Act (the 'N.I. Act' for short). 2. According to the complainant-appellant, first respondent issued a cheque (Ext.P1) for discharge of a debt of Rs.1,25,000/- drawn on a bank. On presentation, it was returned as unpaid for the reason “funds insufficient”. A lawyer notice was issued demanding payment but no amount was paid. Hence, the complaint. 3. PWs. 1 and 2 were examined and Exts.P1 to P10 Ext.D1 series were marked. The court below found that execution of the cheque is not proved. It was also held that the appellant could not produce any satisfactory material to prove that he had source of income to pay such huge amount [Crl.A.No.1704/2010] 2 to the accused. According to learned counsel for appellant, execution of the cheque can be proved by the admission of signature in the cheque by accused. The said contention cannot be accepted, since a document containing mere signature will not constitute a cheque as defined in the N.I. Act. 4. The court below found that the signature and the entries in the cheques are in different ink. The complainant could not state the authorship of the entries made in the cheque. Hence, the trial court was of the view that the defence version that Ext.P1 cheque was created on a signed blank one without the knowledge or consent of the accused is probabilised. There is no reason to reject the finding of fact in respect of the execution of the cheque. 5. Regarding the failure of the prosecution to prove consideration, learned counsel for appellant argued that Ext.P6 will establish the transaction between the complainant and the accused and the court ought to have considered the oral and documentary evidence and found that Ext.P1 cheque was [Crl.A.No.1704/2010] 3 issued for discharge of the debt. It is seen from the impunged order that Ext.P6 contained an undertaking by the accused regarding the alleged transaction put forward by the complainant. But, the said document was produced before the court on an application made by the accused for that purpose, after completion of prosecution evidence. 6. The court below also found that the stamp paper was issued about two years prior to the date on which Ext.P6 was executed. The court also noted that PW1 did not make any mention regarding Ext.P6 at the time of examination before the court. Apart from this, the complainant did not place reliance upon Ext.P6 to prove his case and all these facts fatally affected the complainant's case, it was held. According to court below, the complainant did not state anything about execution of Ext.P6 in the evidence and in such circumstances, it cannot be said that Ext.P6 will prove the transaction. There is no reason to come to a different finding. [Crl.A.No.1704/2010] 4 At any rate, in the absence of proof of execution of Ext.P1, no complaint can be made for offence under Section 138 of N.I. Act. Learned counsel for appellant was not able to substantiate that the findings of the court are wrong. Hence, this appeal is dismissed. Sd/- K. HEMA, JUDGE. krs.