IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 CRL.A.No. 2272 of 2010() ------------------------ CC.55/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... APPELLANT(S): COMPLAINANT ------------------------- M/S.AUTO LEASE AND HIRE PURCHASE, MUVATTUPUZHA, REP.BY POWER OF ATTORNEY HOLDER MR.DILEEP P.SREENIVAS, AGED 37 YEARS, S/O.SREENIVASAN, PATHYKKAL HOUSE, PAIPARA KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.A.V.JAMES RESPONDENT(S): ACCUSED ---------------------- 1. THE STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOY.M.M., AGE NOT KNOWN, S/O.MATHAI, RESIDING AT MANAKKANATH HOUSE, KONNATHADY.P.O., MANGAPPARA, IDUKKI DISTRICT-680 018. PUBLIC PROSECUTOR SMT.REKHA C.NAIR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.2272 of 2010 ----------------------------------------------- Dated 25th November, 2010. J U D G M E N T This appeal arises from an order of acquittal. 2. The appellant is the complainant. He filed a complaint against the second respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. According to complainant, accused owed a sum of Rs.88,000/- to the complainant firm and in discharge of the liability, he issued a cheque dated 11.2.2004 for Rs.88,000/-. The cheque was returned unpaid for want of sufficient funds. A notice was issued demanding payment, but the accused wilfully evaded receipt of notice and it was returned unclaimed. Therefore, complaint was filed, alleging offence under Section 138 of the Negotiable Instruments Act. 3. The accused took up a contention that he had given three blank signed cheque leaves, a blank signed stamp paper and R.C. book, towards security, when he availed a loan of “Rs.70,000/-” as hire purchase loan. He had remitted 13 instalments also. The cheque for “Rs.88,000/-” was not executed by him, it is submitted. Crl.Appeal No.2272/2010 2 4. To prove the prosecution case, PW1 was examined and Exts.P1 to P14 were marked. DW1 and DW2 were examined and Exts.D1 and D2 were marked on the side of the accused. On an analysis of the evidence on record, the trial court found that the evidence of PW1 is not at all sufficient to prove execution of cheque, Ext.P9. Since execution is not proved, presumptions are also not available. 5. The trial court found that PW1 is not the person, who filed the complaint and PW1 has no case that Ext.P9 cheque was handed over to him. He has also deposed that he had not stated that he was present at the time of execution of Ext.P9 and therefore, it was held that the court cannot assume that witness was present there and he had seen putting signature. The mere statement of PW1 to the effect that the cheque was signed by the accused does not mean that he was having direct knowledge regarding the same. 6. The trial court also held that court cannot assume that PW1 is having any direct knowledge. The following observations were made by the trial court :- Crl.Appeal No.2272/2010 3 “Court cannot assume that PW1 is having any such direct knowledge. When PW1 had not deposed any such direct knowledge, accused is not duty bound to ask the source of knowledge in the cross-examination. Accused had put a definite suggestion of PW1 to the effect that Ext.P9 is only a blank cheque leaf given at the time of the hire purchase transaction and the said suggestion covers the vague statement made by PW1 to the effect that Ext.P9 was signed by the accused. The deposition of PW1 is not at all sufficient enough to prove the execution of Ext.P9 cheque. When the execution of Ext.P9 cheque is proved, presumptions are not available.” 7. It was further held in paragraph 14 as follows : “There was no such assertion on the part of PW1 to the effect that he was present at the time of execution of Ext.P9 and he had seen the putting of signature by the accused. His deposition is to the effect that the cheque was signed by the accused. As already pointed out earlier, court cannot assume that he had seen the same.” 8. Learned counsel for the appellant submitted that the accused has not specifically denied the execution of the cheque. He had not denied that the entries were not made by him. He also admitted the liability. Therefore, the findings of Crl.Appeal No.2272/2010 4 the court below are not correct, it is submitted. I am unable to accept his arguments on going through the impugned judgment. The accused has a definite case that he had only given three blank signed cheque leaves when he availed of a loan of Rs.70,000/- as hire purchase loan and he had not issued any cheque for Rs.88,000/-. He had also remitted 13 instalments. In the above circumstances, I am not inclined to admit this appeal. The appeal is dismissed. K.HEMA, JUDGE. tgs