IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 CRL.A.No. 2170 of 2004() ------------------------ AGAINST THE JUDGEMENT STC.89/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... APPELLANT(S): COMPLAINANT: -------------------------- MAHESH M.K. S/O.M.K.KORUNNI, MATTARAKKUNNUMMAL HOUSE, AMBNALAPPADAI, PAYYANAD P.O. MANJERI. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. P.V.A.SALAM, S/O.M.KUNHIBAVA, MOOZHIKKAL HOUSE, J.M.ROAD, PONNANI, NAGARAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJIT FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ------------------------- Crl.A.No.2170 OF 2004 ------------------------------------- Dated 27th June, 2011 J U D G M E N T This appeal arises from an order of acquittal. 2. Appellant filed a complaint against first respondent alleging offence under section 138 of Negotiable Instruments Act on the allegation that accused borrowed an amount of Rs.80,000/- and issued a cheque Ext.P1 for the discharge of the said debt. The cheque on presentation was dishonoured for 'fund insufficient'. Therefore, a lawyer notice was issued demanding payment, but amount was not paid and hence the complaint. 3. Prosecution examined PW1 and marked Ext.P1 to P6. Accused examined DW1 and DW2 and marked Ext.D1 to D6 series. According to accused, he has no acquaintance between the complainant. It is not correct to say that he borrowed any money from complainant or issued the cheque. According to him, one Kunhumuhammed was conducting a chit and accused was a subscriber to the chit. He auctioned Rs.50,000/- in 1997 and gave signed blank cheque and paper to Kunhumuhammed as Crl.A. No.2170/04 2 security. He could not repay the amount. Hence Kunhumuhammed filed a suit against him. Suit was decreed, since accused agreed to pay the amount in installments. Accused could not pay the amount, as he was insisting for lumpsum payment. Therefore, one of the cheques given to Kunhumuhammed was misused for filing this complaint through appellant. 4. Trial court after analysis of evidence, found that though appellant contended that there was close acquaintance with accused ever since 2002, He could not even identify the photograph of the appellant, in his absence in court. It was also found that appellant was aged 23 years at the time of disposal of the case and he was a student two years prior to that alleged transaction. The transaction took place in 2003, immediately after the completion of his studies. Trial court after consideration of evidence in detail found that prosecution has failed to establish that Ext.P1 cheque was drawn for discharge of the liability. 5. Learned counsel for appellant argued that the accused was acquitted only because appellant could not identify the accused from the photograph. The photograph was taken ten years back and the failure to identify the person from such a Crl.A. No.2170/04 3 photograph, may not be a ground to acquit the accused. Learned defence counsel argued that though the photograph was taken ten years back, trial court observed that there was no difference in the physical appearance of accused and the photograph produced in the case. Trial court observed that complainant could have identified the photograph if he had close acquaintance with the accused as alleged by him. Trial court held that it is a vital point supporting the contention of accused that complainant is a stranger to accused. 6. On going through the evidence, records and the impugned order, I do not find that the above finding is perverse or unreasonable. It shakes the veracity of evidence of PW1 regarding transaction with accused, execution of cheque etc. However, learned counsel for appellant argued that accused admitted his signature and name in Ext.P1 and the trial court found that presumption arises under section 118 and 139 of Negotiable Instruments Act. Hence it was not proper to acquit the accused on the ground of failure to identify the photograph, it is argued. 7. It is true that accused admitted his signature and name written by him in Ext.P1. But he has a definite case that a signed Crl.A. No.2170/04 4 blank cheque was handed over to one Kunhumuhammed when he was given the chit amount. The mere admission of signature or name will not prove execution of cheque and it is well settled that presumption will also not arise in such case. Therefore, the finding of presumption arises is of no consequence in favour of the complainant. 8. It is also submitted by appellants counsel that though a written statement is stated to be filed it is not marked in this case. So also, a police complaint was allegedly given, but no satisfactory evidence is adduced regarding the same. It is true that written statement was not produced or marked. But according to accused suit was filed by Kunhumuhammed against him and he produced the plaint in the suit and marked the same as Ext.D3. He had also marked pass book as Ext.D2 and examined DW2 in whose presence cheque leaves were handed over to Kunhumuhammed as security. 9. DW1 gave evidence regarding the circumstances under which Ext.P1 cheque was handed over to Kunhumuhammed. It is also in evidence that respondent gave a complaint to police, since the cheque was falsely forged to file this complaint. A copy of the complaint was also marked. Taking all these facts into Crl.A. No.2170/04 5 consideration, trial court found that complainant has failed to prove its case. I do not find that the findings of the trial court are unreasonable and perverse. Hence I am not inclined to interfere with the order of acquittal. This appeal is dismissed. K. HEMA, JUDGE. Sou.