IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 Crl.L.P..No. 81 of 2011() ------------------------- CRA.390/2006 of I ADDL. DISTRICT COURT, TRIVANDRUM .................... 1ST RESPONDENT/COMPLAINANT ---------------------------------------------- C.SUMITHRAN, PALAZHI, POTHENCODE P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENT(S): APPELLANT/ACCUSED & STATE ---------------------------------------- 1. PRASANNA.K., PAZHUTHODIKKALAM, THASRAK, KINGASSERY P.O., PALAKKAD-677807. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Leave Petition No. 81 of 2011 ----------------------------------------------- Dated this 2nd February, 2011. ORDER This petition is filed to grant leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. He filed a complaint against first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The accused denied the execution of cheque. According to her, she had entrusted some blank cheques with her husband for the purpose of purchasing a vehicle in her name. She has no acquaintance with the appellant and she has no transaction with him. 3. To prove the prosecution case, complainant examined PWs.1 to 3 and marked Exts.P1 to P5. On the side of the defence, Exts.D1 to D5 were marked. 4. On an analysis of the evidence in detail, the court below found that the circumstances under which cheque was issued are doubtful. The relevant observations made by the lower appellate [Crl.L.P.81/2011. 2 court are in paragraph 5, read as follows: “The specific case advanced by the complainant is that the accused borrowed an amount of Rs.3 lakhs from him on 14.1.1998 and issued a post dated cheque on that day for the said amount. But it seems to be very strange that he pleaded ignorance about the handwriting of the cheque. According to the complainant the cheque was given to him at the time of alleged borrowal. If that be so it is too difficult to digest that the accused in anticipation prepared a cheque for Rs. 3 lakhs with date therein and the amount in words and figure and brought the same before the complainant for getting the loan amount. The fact that the complainant did not know who had prepared the cheque in question would definitely makes his case improbable to a certain extent.” 5. I do not find any reason to interfere in the above findings. The court also proceeded to find out how appellant raised the money. At page 4 of the judgment, it is observed as follows: “....During cross examination he has no satisfactory explanation how he had collected such a huge amount of Rs.3 lakhs though an attempt was made by him stating that in the year 1995 he had sold his property for a total amount of Rs.9,25,000/- and it is out of that sale consideration an amount of Rs. 3 lakhs was given to the accused but in the cross-examination itself he had advanced a case that an amount of Rs.95,000/- was taken from his account in a bank and he had an amount of Rs.2,05,000/- in cash with him. It is highly improbable because of the reason that if actually he had received an amount of Rs.9,25,000/- in the year 1995 when it was admitted by him that he was maintaining an account with a bank there is no reason for keeping an amount of Rs.2,05,000/- with him in cash. In short the complainant did not have any [Crl.L.P.81/2011. 3 probable or believable version how he collected at least an amount of Rs.2,05, 000/- and no document produced to show the alleged withdrawal of Rs.95,000/- from his account.” 6. On hearing both sides, I do not find that the reasons shown are perverse or improper for any reason. The above findings themselves cut the root of the prosecution case. Learned counsel for the appellant argued that accused has a case that the cheque was stolen but she had not even sent a reply notice. The case set up by the accused is not probable or believable, it is contended. 7. The burden is on the complainant to prove that the cheque is drawn by the accused for discharge of a legally enforcible debt. Since appellant failed to satisfy the court that the cheque was drawn under the circumstances stated by by him, the court also looked into the question how appellant had raised the money to pay the huge amount of Rs. 3 lakhs and it was found that there is no evidence to establish source of money. In such circumstances, I am not inclined to grant leave. Criminal Leave Petition is dismissed. Sd/- K. HEMA, JUDGE. Krs.