IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 1024 of 2002() ----------------------------------- CRA.208/1998 of SESSIONS COURT, THODUPUZHA CC.264/1994 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT(S): 1ST RESPONDENT/COMPLAINANT: -------------------------- ANIL KUMAR, S/O. KUMARAN, VADAKKAMPARAMBIL HOUSE, KALLOORKAD P.O. BY ADV. MR.SREEPRAKASH K.NAIR RESPONDENT(S): APPELLANT/ACCUSED: --------------------------------- 1. RAVI, S/O. KUMARAN, MALAKUZHIYIL HOUSE, KALLOORKKAD (P.O). 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1024 OF 2002 = = = = = = = = = = = = = = = Dated this the 18th day of August, 2009. J U D G M E N T This appeal is preferred against the judgment in Crl.Appeal 208/98 passed by the Sessions Judge, Thodupuzha. It was an appeal preferred against the order of conviction passed by the learned Chief Judicial Magistrate Court, Thodupuzha in C.C.264/94. It is the case of the complainant that the accused had borrowed a sum of Rs.45,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment was not encashed on account of the stoppage of payment. There was no sufficient money in the Bank account and as the accused did not pay back the amount prosecution has been launched. On an understanding of the defence case it is contended that the complainant had agreed to purchase the property of the accused and had paid an advance of Rs.20,000/- and as the transaction did not materialize the accused paid back the amount of Rs.5,000/- and gave a cheque for the balance Crl. Appeal NO. 1024 OF 2002 -:2:- Rs.15,000/- by just filling the amount in figures and put his signature. He denied the transaction of the borrowal of Rs.45,000/- as contended by the complainant. Learned Magistrate on an analysis of the evidence found in favour of the complainant and convicted the accused and sentenced him to pay a fine of Rs.50,000/- and in default to undergo imprisonment. But the learned appellate judge felt otherwise and held that the complainant has not proved his case as there was persistent non appearance for the counsel for the accused and as the respondent in the appeal was not represented by any lawyer this court has postponed the case on so many occasions and ultimately a notice had been issued to the appellant's counsel. Today when the matter was taken up there was no representation. Later a representation was made for adjourning which I had not granted for the reason that the court had perused the documents for about half an hour at that point of time. In the afternoon when the matter is taken up also there is no representation for the appellant. I had perused the judgment, records and proceed to dispose of Crl. Appeal NO. 1024 OF 2002 -:3:- the case as follows. 2. It is the definite case of the complainant that the accused had borrowed a sum of Rs.45,000/- and towards the discharge of the liability had issued the cheque. On the contra, the accused would contend that for the return of the advance money he had given a cheque by filling the figures and putting his signature. PW1 is the Branch Manager and PW2 is the complainant. DWs.1 to 3 are the witnesses of the accused. Exts.P1 to P7 and X1 to X3 had been marked. A perusal of the evidence of PW1 would reveal that he was the Branch Manager of the concerned Bank. He had deposed before court the cheque, Ext.P2 bears the signature of the accused and there was only a balance of Rs.12803.37. It is also stated by him that there is an overwriting in the cheque as '4' and he does not know who had done the same. PW2 is the complainant. He had deposed before court that he is well acquainted with the accused and he had given a cheque on 27.12.93 which is Ext.P2. He speaks about the other things in line with the complaint. In the cross examination he had Crl. Appeal NO. 1024 OF 2002 -:4:- denied the suggestion of a cheque being given by the accused towards the return of the advance amount. He admits regarding the overwriting and says that it was there at the time when the cheque was given. According to him the cheque was written by the accused in front of him. 3. DW1 is the Branch Manager of the State Bank of Travancore who speaks about the revenue recovery proceedings initiated against the complainant for the amount due and DW3 is the Manager who deposes that Ext.P2 cheque was returned on the basis of Ext.P3 memo. Exts.X1 and X2 documents are produced to show that the complainant was in financial difficulties at that time and therefore there was no possibility for him giving any amount to the accused. I had perused the disputed cheque. There is a clear overwriting visible. The appellate judge had considered the matter also referring to the report of the expert. The expert had stated that he is unable to compare and find out the overwriting for the reason that it is so done that it has become incapable of extracting and finding out. But the admitted fact is that there Crl. Appeal NO. 1024 OF 2002 -:5:- is considerable overwriting on the letter '4'. Then he has also reported that the handwriting in the cheque does not tally with the admitted handwriting of the accused which was sent for comparison. It is the definite case of the complainant that the accused had written the cheque in front of him. If the accused had written the cheque in front of him and then on comparison with the admitted handwriting it is not expected to be different. Therefore from the materials available the following points are seen. 4. There is a real overwriting making it as '4' and that the body of the cheque is not in the handwriting of the accused. When the accused has got a definite case that he had given a cheque writing the figures and signing the cheque it has to be stated that there was a burden cast upon the complainant to prove those factors. But unfortunately the evidence tendered in this case does not help to prove that factor. When it is so by adducing evidence the accused has established a case of preponderance of probability and the evidence adduced by the complainant does not fulfill the Crl. Appeal NO. 1024 OF 2002 -:6:- standard of proof which is expected to be placed before Court. So, on an evaluation, I concur with the finding of the learned Sessions Judge and also agree with him on the finding that the accused is entitled to an acquittal. Therefore the appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1024 OF 2002 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1024 OF 2002 = = = = = = = = = = = J U D G M E N T 18th August, 2009