IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRL.A.No. 1223 of 2004(C) ------------------------ CRA.106/1999 of SESSIONS COURT, KOZHIKOE ST.200/1995 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... APPELLANT: RESPONDENT/COMPLAINANT: ---------------------------------------------- M.MURALI, MANAPURATH HOUSE, FIELD VIEW COLONY ROAD, CHEVARAMBALAM, KOZHIKODE-17. BY ADV. SRI.P.K.RAMKUMAR RESPONDENTS: APPELLANT AND STATE/ACCUSED & STATE: ------------------------------------------------------------------ 1. C.P.A.LATHEEF, PARTHARY PARAMBA HOUSE,GURUVAYOORAPPAN COLLEGE P.O KOZHIKODE-14. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR AT HIGH COURT OF KERALA. R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM) R2 BY PUBLIC PROSECUTOR, SRI. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1223 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2008. Judgment Appellant had prosecuted respondent No.1 herein for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial court found that appellant/complainant had satisfactorily proved his case and accordingly respondent No.1/accused was found guilty. The trial court sentenced the accused to undergo simple imprisonment for one month. 2. The above order of conviction was challenged by the accused before the appellate court. The learned Sessions Judge set aside the order of conviction and sentence and held that the evidence adduced by the complainant was not cogent or satisfactory enough to hold that Ext.P1 cheque had been issued by the accused in discharge of a legally recoverable debt or liability. In other words, learned Sessions Judge held that there was no satisfactory evidence to prove execution of the cheque. The above order is under challenge at the instance of the appellant/complainant. 3. The case of he complainant was that the accused had borrowed a sum of Rs.50,000/- from him on January 20, 1995. Accused had issued Ext.P1 cheque dated February 20, 1995 in discharge of the above debt. The cheque was dishonoured when it was presented for encashment. The statutory demand notice did not evoke any response from the accused. 4. The complainant was examined as Pw.1 and his witness was examined as Pw.2 . Exts.P1 to P5 were marked on his side. There was no oral or documentary evidence on the side of the accused. 5. As mentioned earlier, the case of the complainant was accepted by the trial court. In appeal the learned Sessions Judge took the view that the admission of signature in the cheque was of no avail to the complainant to contend for the position that it had been executed and issued by the accused in discharge of a legally recoverable debt. The learned Sessions Judge noticed that the signature and the other writings were in different inks. The case of the accused was that he had handed over a blank signed cheque to the complainant as a security in connection with a loan transaction between the complainant and Mr.Subair. According to him, the complainant had misused the said cheque to launch the present prosecution against him. 6. But significantly the accused had not bothered to examine Sri.Subair or any other witness to substantiate the above contention. It may be true that the signature of the accused in the cheque was in a different ink as compared to the other writings therein; but that did not necessarily mean that the execution of the cheque itself was doubtful. It may yet again be true that the complainant, in the course of his examination, had stated that the accused had made the entries in the cheque in his presence at his office. It was in the above circumstances that the learned Judge proceeded to hold that execution of the cheque was suspicious. In my view, the learned Sessions Judge was not justified in entering such a finding. 7. As noticed already, the defence set up by the accused did not inspire any confidence in the trial court. In the absence of any evidence from the side of the accused, the entire burden was on the complainant. More importantly the presumption available under Section 139 was in favour of the complainant. The accused had not discharged the burden cast on him. In any view of the matter, the finding entered by the learned Sessions Judge cannot be sustained. Therefore the order of the learned Sessions Judge is set aside. The case is remitted to the appellate court for fresh disposal in accordance with law. It is made clear that it will be open to the learned Sessions Judge to decide the appeal untrammalled by any of the observations made above. A.K.Basheer, Judge an. A.K. Basheer, J. Crl.A.No.1223 of 2004 Judgment 08/04/2008