IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 CRL.A.No. 839 of 2002() ----------------------- CC.635/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ S.VIJAYAMOHAN, THILAKIL VEEDU (PULIKKAPATHALIL), MAAGARAM MURI, KONNI VILLAGE. BY ADV. MR.V.PHILIP MATHEW RESPONDENT(S): ACCUSED: -------------------------------------------- R.ANIL KUMAR, ANIL BHAVAN, AIRAVON MURI, KONNI VILLAGE, KOZHANCHERRY. BY ADV. MR.SHAJI JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. No.839 OF 2002 ===================== Dated this the 25th day of May 2009 JUDGMENT This appeal is preferred against the order of acquittal passed in C.C.No.635 of 1998 of the Judicial I Class Magistrate Court-II, Pathanamthitta. The prosecution is initiated in the form of a private complaint under Section 420 I.P.C. for cheating. The brief facts are: it is the case of the complainant that the accused had borrowed money from him and towards the discharge of liability he had issued a cheque Ext.P5 for a sum of Rs.1,16,600/-. When the cheque was presented for encashment, it had returned with the endorsement 'insufficiency of funds' and therefore action was initiated under Section 138 of the Negotiable Instruments Act. When the accused in the case received the summons, he has told the complainant that Section 138 will not lie for the reason that the cheque leaf is of his brother and not of his and therefore action will not lie. Then only the complainant realised that the accused had cheated him and therefore initiated the present proceedings. 2. On the contra, it is the case of the accused that the complainant CRL.A.No.839/2002 -:2:- along with his aid had stolen the cheque leaf of his brother Jayakumar and had forged a false document and initiated action. As far as this case is concerned, the crux of the matter depends upon the fact whether the accused deliberately and knowingly and with the intention to cheat had put his signature in a cheque belonging to his brother and making the complainant to believe that it was his cheque and towards the discharge of the liability. There is categorically crystal contention by the accused to the effect that he had not signed in any cheque and his case is that Ext.P5 is a cheque stolen from his brother wherein the signature of the accused is alleged to have been forged. It is true that if a person makes use of the cheque leaf of another person fraudulently with the intention to cheat certainly a case for cheating may lie. But, in order to do so, it must be convincingly established that the person who had issued such cheque had put his signature and had fraudulently acted in a manner to cheat the complainant. The trial court found that there is absolutely no evidence to show that the signature in Ext.P5 is that of the accused in this case. I had also the opportunity to peruse Ext.P5 cheque and the vakalath executed by the accused before court. I am conscious of the fact that the comparison of hand-writing by a court is a hazardous task and the court should not resort to the same. But, at the same time Section 73 of the Evidence Act enables CRL.A.No.839/2002 -:3:- the court to do so and the caution is that the court should not decide the issue on a result of a mere comparison, but it can be used as a corroborative piece of evidence. 3. So far as this case is concerned, even the naked eye will dispel the doubt for the reason that there is absolutely no similarity between the signature in the vakalath and that in the cheque. Further this is a fact which is admitted by PW1 as well. PW1 when examined, had deposed before court in cross examination that there is vast difference in signature seen in the vakkalath and in the cheque. But, when confronted with such a difficult situation, the complainant would add that the accused used to sign in different forms and according to him the signature in the promissory note executed also differs. He had very clearly stated “.......................................................................................................................... .............” . So the basic ingredient to arrive at a decision is totally not proved before court. This person was examined as early as on 31.3.2001. The judgment was pronounced by the court on 20.7.2002. On the date of pronouncement of the judgment the complainant moved applications for reopening the case and to send the documents for comparison by a hand- writing expert. A perusal of the order in those two applications would reveal that such applications were brought to the notice of the court only CRL.A.No.839/2002 -:4:- after the pronouncement of the judgment. It has to be remembered that this is a case where 138 proceeding was initiated. The definite case is that the accused had cheated him by giving a cheque belonging to his brother and the accused's definite contention is that he had not given any cheque. So when such was the situation, it was the duty of the complainant to adduce evidence to satisfy the conscience of the court either in the form of scientific evidence or by convincing oral evidence. As stated by me earlier, the mere comparison would show that there is no similarity at all and further the added version of the complainant that he signs in different forms also would indicate that even if it is sent for an expert opinion it will not conclusively show that it is his signature and it has also to be stated that expert opinion is also an opinion evidence and not a conclusive evidence. So, after a period of 11 years, I do not want to re-start the entire prosecution and the complainant has to blame himself for the mistake, if any, committed and I am also convinced that scientific report may not help the court in this case to prove when the accused signs in different forms. I do not find any ground to interfere with the decision rendered by the trial court. Therefore CRL.A.No.839/2002 -:5:- the appeal lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-