IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 1298 of 2003() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.136/2003 Dated 03/07/2003 ST.590/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, OTTAPPALAM .................................................................................... APPELLANT(S): COMPLAINANT ------------------------------------------ BIJU, S/O. CHACKO, RESIDING AT VELUTHEDATH PARAMBIL VEEDU, VALAMPIRIMANGALAM DESOM, SREEKRISHNAPURAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH RESPONDENT(S): NOT PARTY/ACCUSED -------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.SHAMEER, RESIDING AT PALIYAYILL HOUSE NEDUMPARAMB VENGARA P.O., MALAPPURAM DISTRICT. BY ADV.SRI.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1298 OF 2003 -------------------------- Dated this the 9th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in S.T.No.590/2000 on the file of the Judicial First Class Magistrate's Court, Ottapalam. It is the case of the complainant that the accused had borrowed a sum of Rs.80,000/- from him and towards the discharge of the liability, he had issued a cheque to the Federal Bank, which when presented for encashment returned with the endorsement `insufficiency of funds'. A lawyer notice was issued for which no reply was sent and thereafter the prosecution has been launched u/s.138 of the Negotiable Instruments Act. The case of the accused appears to be that he has no acquaintance with the complainant at all and he had given a blank cheque to one Saidalavi which could have been used for the purpose of initiating this action. The Trial Court at the request of the learned counsel for the accused just before the cross examination of the complainant, wanted the complainant to identify the accused among 15 persons who were allowed to stand on the back of the Court hall. Strangely, the complainant said that the accused was not among them. Thereafter, the accused was CRL.A.No.1298 OF 2003 2 asked to enter the `accused dock' and the complainant stated that he does not know him and that he has no transaction with that person. In the chief examination, the second answer is that the accused is a friend of him. When confronted with such a difficult situation, it is attempted to be explained by saying that the accused was not seen by the complainant for the last 3 years and that he had gone fat. One might grow fat, but the complainant can not afford to be so flat in failing to understand a friend of him to whom he is alleged to have advanced a loan of Rs.80,000/-. To crown all these things I may also refer to the age shown in the complaint. Initially, it was endorsed that the complainant does not know the age of the accused. Most probably, somebody felt about the inaccuracy of the same and therefore it was corrected and the age was shown as 40 years. In fact, the accused was hardly aged 22 years at the time of the alleged advancing of the amount. So, the contention of the accused that he has no acquaintance with the complainant and he had not issued any cheque to the complainant is proved in CRL.A.No.1298 OF 2003 3 abundance by the conduct of PW1 himself. In law, execution of the cheque has to be proved and if it is proved, then the only question of presumption will arise. It is also settled principle of law that the mere admission of a signature in a document does not amount to admission of the execution of the document. In the back drop of the materials available, that the complainant even does not know the accused, I do not feel it necessary to look into any other document. The case of the complainant has to be totally disbelieved. This is what has been precisely done by the learned Magistrate and I do not find any ground to interfere with the said decision and therefore this criminal appeal lacks merits and it is dismissed. M.N.KRISHNAN, JUDGE an.