IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 CRL.A.No.108 of 2008 (C) ------------------------------ ORDER IN CRL.L.P.319/2007 DT.12/06/07 CC.218/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... APPELLANT: COMPLAINANT -------------------------------- S.U.A.VAHID, SON OF S.M.SHEIRK USMAN RESIDING AT RAZIYA QUARTERS, NORTH KOTTACHERRY, P.O.KANHANGAD. BY ADV. SRI.V.G.ARUN RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. SUNITHA.P., WIFE OF JAYARAJAN, PROPRIETOR, POOJITHA MEDICALS, NEAR L.V.TEMPLE, KANHANGAD P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.ANTONY JOSEPH SMT.K.G.SARALAKUTTY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.108 of 2008 ------------------------------------------------ Dated this the 10th day of April, 2008 JUDGMENT The complainant in C.C.218/03 on the file of the Judicial First Class Magistrate's Court-I, Hosdrug is the appellant. He assails in this appeal the acquittal of the first respondent of offence punishable under Section 420 of the IPC vide Section 248(1) of the Cr.P.C. 2. The appellant filed complaint in the court below alleging that himself and the first respondent were knowing each other and as such on 16/08/02 the first respondent borrowed from him an amount of Rs.50,000/- in the presence of the witnesses mentioned in the schedule namely one V.Balakrishnan and the Manager of Vijaya Bank, Kanhangad branch and issued Ext.P1 cheque dt.01/10/02 for Rs.50,000/- in discharge of the amount due to be paid to him; that he presented the cheque Crl. Appeal No.108 of 2008 -2- on 09/10/02 for collection through his bankers namely the Canara Bank, Kanhangad branch, but the cheque was dishonoured and returned to him with Ext.P2 memorandum issued by the drawee bank stating the reason for dishonour as being “N.P.A account, legal action initiated”; that the first respondent issued cheque being fully aware that the same will not be encashed on presentation and her intention was to cheat the complainant for unlawful monetary gain and that even at the time of issuance of the cheque the accused was having an intention to deceive the appellant/complainant. 3. It is further alleged that on 18/10/02 the appellant issued a registered notice to the first respondent calling upon her to pay the amount covered by the cheque within fifteen days of receipt of the notice, but the first respondent who received the notice on 22/10/02 has neither sent any reply nor has she paid up the amounts covered by the cheque Crl. Appeal No.108 of 2008 -3- either within the statutory period or ever thereafter; and that thereby she has committed an offence punishable under Section 420 of the IPC. The learned Magistrate recorded the sworn statement of the appellant and also the testimony of witnesses and took cognizance of the offence under Section 420 IPC and issued summons to the first respondent. 4. On appearance of the first respondent she was served with copies of all relevant records in the case and after hearing both sides the court below framed charge against the first respondent for offence under Section 420 IPC and questioned her reading over and explaining the charge to her. Thereupon, she pleaded not guilty and consequently, a trial of the case was conducted by the court below. 5. On the side of the complainant PWs.1 to 3 were examined and Exts.P1 to P4 were got marked. On the appellant closing his evidence the fist respondent was questioned by the Crl. Appeal No.108 of 2008 -4- learned Magistrate under Section 313 Cr.P.C. Thereupon, she generally denied all incriminating circumstances appearing in evidence against her and maintained that she is innocent. According to her, she has not issued any cheque nor has she signed in any cheque. On the defence side DW1 is examined and Ext.D1 is got marked. 6. The learned Magistrate who tried the case considered the case in the light of the evidence adduced as aforesaid and acquitted the first respondent of offence under Section 420 of the IPC vide Section 248(1) of the Cr.P.C finding her not guilty consequent on his finding that there is no proof of execution of Ext.P1 by the first respondent. Hence, this appeal by the aggrieved appellant. 7. It is contended before me by the learned counsel for the appellant that the learned Magistrate was coming to the conclusion that the signature in Ext.P1 is not Crl. Appeal No.108 of 2008 -5- that of the first respondent after making a comparison of the signature in Ext.P1 with that in Ext.D1 specimen signature card and that such comparison by court by itself is not sufficient so as to acquit the first respondent and dispose of the case. According to him, an opportunity should have been afforded to have the writings and signature in Ext.P1 to be got examined by an expert. 8. It is worthy to note that the appellant never wanted the writings and the signatures in Ext.P1 to be got subjected to examination by an expert. It is not for the court to advise the appellant as to what all is to be done to have Ext.P1 duly proved. Having not chosen to adduce necessary evidence in proof of Ext.P1 as having been executed by the first respondent, it is futile to contend that the court below should not have acquitted the first respondent making a comparison of the signature and handwriting in Crl. Appeal No.108 of 2008 -6- Ext.P1 with the admitted handwriting and signature in Ext.D1 specimen signature card. Further, it is also worthy to note that the specific case of the appellant in the complaint filed by him in the court below is that the first respondent borrowed a sum of Rs.50,000/- from him in the presence of the witnesses mentioned thereunder namely one V. Balakrishnan and the Manager of the Vijaya Bank, Kanhangad branch and issued Ext.P1 cheque dt.01/10/02 for Rs.50,000/-. If so, the said V. Balakrishnan and the Manager of Vijaya Bank, Kanhangad branch on 16/08/02 would have been the best witnesses to establish the transaction. The said Balakrishnan is examined by the appellant as PW3. Though he has stated that he has witnessed the transaction which took place on 16/08/02 and the first respondent issuing cheque to the appellant, in cross examination it has been brought out that he is a friend of the appellant himself and Crl. Appeal No.108 of 2008 -7- that he is residing 10 - 15 kilometres away from the house of the appellant. He has also admitted that there are ever so many residences in the vicinity of the house of the appellant. To him also a specific question was asked suggesting that the signature in Ext.P1 cheque is not that of the first respondent though he has denied the said suggestion. However, it is not stated by him either in chief examination or in cross examination that he has seen the first respondent signing in Ext.P1 cheque. PW1 has admitted in cross examination that he does not know the name of the father of the first respondent that he does not know the native place of the first respondent and that he had no financial transaction with the first respondent ever before and that he himself was a worker in the Neeleswaram godown of the Food corporation of India. He has further stated in cross examination that the husband of the first Crl. Appeal No.108 of 2008 -8- respondent is employed in a medical shop and that he has no financial transaction with the husband of the first respondent. A suggestive question was put to him in cross examination that a blank cheque was being obtained from the first respondent for monies due from her husband threatening her and that no amount is due from her to the appellant which however, is denied by PW1. Further, in cross examination, it is brought out that it was on 11/08/02 that the first respondent asked for loan though the amount was being advanced on 16/08/02. But that is however, not disclosed either in the complaint or in the chief examination. To PW2, the Manager of Vijaya Bank, Kanhangad branch no question is asked as to whether he had witnessed the execution of Ext.P1 and probably for that reason he is not cross examined also by the defence lawyer. Thus, in effect in proof of execution of Ext.P1 as being by the first respondent, there Crl. Appeal No.108 of 2008 -9- is only the solitary interested testimony of the appellant as PW1. In the circumstances, especially when the first respondent has denied receipt of any loan or execution of Ext.P1 cheque and the appellant having miserably failed to establish that, the Magistrate was fully justified in holding that no offence under Section 420 of the IPC stands made out as against the first respondent. In the circumstances, this appeal is devoid of merit and deserves only to be dismissed confirming the correctness of the acquittal of the first respondent by the court below. 9. In the result, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-