IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.L.P..No. 292 of 2009() -------------------------- (AGAINST THE JUDGMENT IN C.C.321/08 OF JUDICIAL FIRST CLASS MAGISTRATE-II, (ADDL. MUNSIFF), KASARAGOD) PETITIONER/COMPLAINANT ------------------------------------ JAYARAJ, S/O.VEERAPPA BANGERA, AGED 30 YEARS, "NITHYANANDA SADANA", BANDIYODU, MANGALPADY VILLAGE AND POST, KASARAGOD. BY ADV. SRI.SAJEEV KUMAR K.GOPAL RESPONDENT(S): STATE AND ACCUSED --------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. ABDULLA, S/O.ABDUL RAHIM, KUNDELA HOUSE, KAYYAR P.O., KASARAGOD. PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMED THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl.L.P. NO. 292 OF 2009 = = = = = = = = = = = = = = = Dated this the 22nd day of May, 2009. J U D G M E N T This petition is filed for a special leave. The complainant in a 138 case is the petitioner before me. It is his case that the accused had borrowed a sum of Rs.3,75,000/- and towards the discharge of the liability had issued Ext.P1 cheque which when presented for encashment was returned with the endorsement 'insufficiency of funds'. Thereafter the legal formalities were complied with and a complaint has been launched under the provisions of the N.I. Act. 2. The case of the defence is that the cousin of the accused namely one Muhammed had obtained money from the complainant in connection with a Visa transaction and at that time the complainant obtained signed blank cheques from the accused as a security. It is his definite case that the complainant misused the cheque and filed a case of this nature for getting money from the accused. The trial court has Crl.L.P. 292 OF 2009 -2- analysed the evidence and had not accepted the evidence of the prosecution. The trial court found that the accused in the case is only a petty shop owner and the complainant in his evidence has admitted that he cannot deny that the accused is struggling to make both ends meet. The trial court opined that when a person does not have any resources at all, under ordinary circumstances one will not venture to advance a large sum of Rs.3,75,000/- to that person. The lower Court also found that the complainant did not have much idea about the accused for the reason that age of the accused was shown as 42 years in the complaint. When the accused was available before Court he had to admit that he was aged 70 years. So the contention of the defence that the cheque was issued to brother-in-law of the accused in connection with a transaction as found by the Court below appears to be more probable and acceptable. It is a well settled principle that a mere admission of a signature in a document does not itself prove the execution of the document. Execution of the document has to be proved by the person who places a claim on the same. Crl.L.P. 292 OF 2009 -3- Therefore as analysed by the Court below the materials available does not show that the complainant has succeeded in proving the transaction of advancement of Rs.3,75,000/- and towards the discharge of the liability of the same the accused had issued a cheque. Therefore I do not find any ground to interfere with the decision of the trial court and therefore leave for appeal is refused. M.N. KRISHNAN, JUDGE. ul/-