IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.L.P..No. 1102 of 2010() --------------------------- ST.2147/2006 of J.M.F.C.,THIRUVALLA ..................................... (S): PETITIONER/COMPLAINANT ------------------------------------------ P.K.KURIEN,S/O.P.K.KURUVILLA PATTAMPALATHU HOUSE,THURUTHICADU.P.O,KALLOOPPARA, PATHANAMTHITTA. BY ADV. SRI.C.K.SASI RESPONDENT(S): ACCUSED ---------------------- 1. M.J.VINCENT,MANKUNNEL HOUSE, AVOLY.P.O,ANICADU,MUVATTUPUZHA. 2. STATE,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.JOSEPH GEORGE FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.1102 of 2010 ----------------------------------------------- Dated 2nd December, 2010. O R D E R This petition is filed for granting special leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. He filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. According to him, for the payment of Rs.25,000/- due to the complainant from the accused (first respondent), the latter issued a cheque (Ext.P1) dated 14.7.2006 drawn on the account maintained with the bank. When the cheque was presented for encashment, it was returned dishonoured for want of sufficient funds. A lawyer notice was issued, demanding payment, but the amount is not paid, though the notice was accepted by the accused. 3. On the side of the prosecution, PW1 was examined and Exts.P1 to P6 were marked. The accused did not adduce any evidence, but denied the execution and the liability. The trial court found that the prosecution failed to prove execution and existence of a legally enforceable debt. It was Crl.L.P. No.1102/2010 2 also found that since execution of the cheque is not proved, the presumption under Section 139 of the Negotiable Instruments Act will not be available to the complainant. 4. Learned counsel for the petitioner submitted that the trial court has wrongly placed the burden of proof of prosecution case on the complainant. According to him, in the light of the decision reported in K.N.Beena v. Muniyappan (2001 Crl.L.J. 4745), the burden is on the accused to prove that the cheque is not executed. It is also submitted that a petition was filed to produce certain documents to prove his case, but the court rejected the application and disposed of the case on the same day. An opportunity may be given to produce the original documents, it is submitted. 5. On hearing petitioner's counsel and on going through the order under challenge, I find that the trial court has entered the finding on the execution of the cheque and the presumption under Section 139 of the Negotiable Instruments Act on valid and sound reasons. The trial court in paragraph 12 Crl.L.P. No.1102/2010 3 of the judgment, observed as follows :- “Here though the accused had made a definite contention that he has not executed and issued Ext.P1 cheque to the complainant in discharge of any debt or liabilities, the complainant has not taken any steps to prove the transaction and execution of the cheque. Though he had submitted that witnesses are available for proving the transaction and execution of the cheque nobody was examined in this case. So also he has not adduced any evidence to prove the source from which the amount of Rs.25000/- was given to the accused. So in the light of the discussion above, I am of the view that the complainant had not succeeded in establishing the execution and issuance on Ext.P1 cheque and also the transaction in respect of which Ext.P1 cheque was issued, though the accused had denied the transaction and execution of the cheque. PW1 deposed during cross examination that the entries in Ext.P1 cheque are in different ink and in 2 different hand writing and the same was happened as the cheque was written and signed on different occasion and at the same time he submitted that Ext.P1 cheque was written and signed in his presence by the accused at the time of borrowing amount. So all those aspect discussed above create a suspicious circumstance regarding the transaction and execution of cheque was also would strengthen the case of the accused. But the complainant had failed in removing the suspicion and also for proving the execution Crl.L.P. No.1102/2010 4 of the cheque. So as the complainant had failed in proving one of the ingredients of Sec.138 of the N.I.Act that Ext.P1 cheque was executed and issued for a legally enforceable debt or liabilities, no conviction is legally permissible.” 6. The trial court relied upon various decisions of this court and the Supreme Court, which are quoted in the judgment, to enter the above findings. There is no reason why such findings are interfered with. It is well settled that the burden of proving execution of cheque in a case involving offence under Section 138 of the Negotiable Instruments Act is on the complainant himself. But, in this case, because of certain suspicious circumstances, which emerged from evidence, the trial court found that the execution is not proved. 7. It is also relevant to note that it is not because of non-production of any document from the side of the complainant that the finding regarding execution of cheque is entered into. Whether the complainant produces any document or not, there cannot be any difference in the finding on the execution of the cheque. It is also to be mentioned in this Crl.L.P. No.1102/2010 5 context that learned counsel for the petitioner was not able to even state which are the documents which he seeks to produce in court to prove his case. In Annexure A2, which is a copy of the petition, which he has filed before the trial court, none of the details of the documents, which are sought to be produced are mentioned. 8. In the above circumstances, I do not find that any opportunity be given to the petitioner for production of any document. There is no infirmity or illegality which calls for any interference in the order of acquittal. Hence, I am not inclined to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs