IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 CRL.A.No. 893 of 2003() ------------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.51/2003 Dated 04/06/2003 CC.966/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... APPELLANT(S): COMPLAINANT ------------------------- K.RAMU, S/O. K.N.KARUPPASWAMI PILLAI, REVANTH NIVAS, CHEETI STREET, PALAKKAD. BY ADV. MR.S. VIJAYAKUMAR. RESPONDENT(S): ACCUSED & STATE ------------------------- 1. M.M.BHADURUDIN, M & M COOL BAR, BAKERY & TEA STALL, PRIYADARSINI ROAD, PALAKKAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. MR.P.CHANDRASEKHAR FOR R1 BY GOVT. PLEADER MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.893 OF 2003 ------------------------------ Dated this the 29th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed in C.C.No.966/2001 of the J.F.C.M-III, Palakkad. It is the case of the complainant that the accused had borrowed a sum of Rs.1,50,000/= with 12% interest and towards the discharge of the liability, the accused had issued a cheque, which when presented for encashment, returned with the endorsement of insufficiency of funds. Thereafter, a statutory notice was issued and prosecution was launched. The defence of the accused appears to be that there was some dispute between him and his brother-in-law, Kasim. According to the accused, the said Kasim had taken a blank signed cheque as well as a blank singed paper and had handed over to the complainant which has resulted in this action. 2. In the court below, PW1, DWs1 and 2 were examined, Exts.P1 to P7 were marked. The court below held that there is no sufficient evidence and so, acquitted the accused. It is 2 CRL.A.NO.893/03 against that decision, the complainant has come up in appeal. 3. The points that arise for determination are (1) whether the court below erred in appreciating the evidence to arrive at the decision (2) whether the accused had committed the offence punishable under Section 138 of the N.I.Act. 4. Points 1 and 2: It is the case of the complainant that on 1.2.2000, the accused had borrowed a sum of Rs.1,50,000/= with a stipulation to pay interest and had executed a promissory note for the same. When the amount was demanded on 1.8.2001, he had issued a cheque for Rs.1,75,000/=, which when presented for encashment, returned for insufficiency of funds. The defence would contend that the accused has no connection with the complainant at all and it was due to the mischief played by his brother-in-law by handing over the blank singed cheque and blank signed paper. In a proceedings under Section 138 of the N.I.Act, the burden never shifts on the accused unless the execution is proved and presumption is available. The courts have held that when the complainant as well as the accused 3 CRL.A.NO.893/03 adduce evidence, the courts are at liberty to analyse both the evidence to find out on whom does the preponderance of probability lie. It has to be stated that the burden of proving the execution of the cheque is always on the complainant. In this backdrop, the matter has to be analysed. A reading of the evidence of PW1 does not inspire any confidence in me at all. The acquaintance of the complainant with the accused is that he uses to visit his shop for taking cool drinks. When such a person, comes and asks for an amount of Rs.1,50,000/=, the complainant even does not ask the purpose for which the amount is being borrowed. These are quite unnatural human conduct. I had the opportunity to peruse the original of the promissory note as well as the cheque in dispute in this case. A perusal of the promissory note though not marked with naked eye would reveal that the promissory note is typed out in a paper where stamps have been affixed and signature had been obtained. Further, it can be seen that the cheque is also type written. It is not a commercial firm, but the transaction is between two laymen and in that backdrop, the 4 CRL.A.NO.893/03 typing also assumes importance for the reason that it has been subsequently done. So, prima facie, the promissory note as well as the cheque would reveal that they are subsequently filled ones wherein the signature has been obtained in blank form. Further, DW2 had deposed that there was a complaint filed against the brother-in-law of the accused for stealing the cheque leaves. I am not going into the factual aspects for the reason that the materials available to prove the execution of the promissory note are not all sufficient and it is absolutely casual in nature and therefore, the approach made by the trial court which had the opportunity to see the witnesses cannot be slightly shaken. So, I find that the appeal is devoid of merit and therefore, dismissed. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.893/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.893 OF 2003 ------------------------------ 29th day of June, 2009 JUDGMENT 6 CRL.A.NO.893/03