IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 Crl.L.P..No. 7 of 2011() ------------------------ S.T.113/09 OF J.F.C.M. II, ETTUMANOOR. (S): PETITIONER/COMPLAINANT ------------------------------------------ JOMY SCARIA, ARANGATHU HOUSE, ARUMANOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): ACCUSED ---------------------- 1. JOSSI ABRAHAM, KOCHUMALKUNNEL HOUSE, AYARKUNAM P.O., KOTTAYAM DISTRICT-686564. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.7 of 2011 ----------------------------------------------- Dated 13th January, 2011. O R D E R This petition is filed for special leave to file an appeal against order of acquittal. 2. Complainant is the petitioner. He filed a compliant against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. To prove the prosecution case, petitioner examined PW1 to PW3 and marked Exts.P1 to P5. The accused examined DW1 on his side. 3. On an analysis of the evidence on record, the trial court found that the complainant was not successful in proving that the accused had drawn the cheque in his favour. Therefore, merely because PW1 happened to have a cheque received from the accused, it cannot be said that he has executed the cheque and PW1 received the same in discharge of a debt or liability. Since execution is not proved, the presumption is not available to the complainant, it is further held. 4. The trial court, referring to the evidence of PW1 and PW2, held as follows : “PW1 stated that accused had drawn the cheque and Crl.L.P. No.7/11 2 he had made all the entries in the same in his presence. PW2 was examined to prove the transaction of the borrowal and issuance of the cheque. He is staff of the business firm of PW1. He also stated that accused himself had made all the entires in the cheque. However on perusal of Ext.P1 it shows that the pen used to put the signature is different from the pen used for writing the other entries in the cheque. This would believe the version of PW1 regarding the drawing of the cheque in favour of PW1.” 5. On hearing petitioner's counsel, I do not find any reason to reverse the above findings. Learned counsel for petitioner argued that the evidence of PW1 and PW2 establishes that the cheque is executed, especially since accused admitted the signature in the cheque. I am unable to agree with these arguments in the light of the facts referred to in the impugned order. I do not find any illegality or impropriety in the order which calls for any interference. Hence, I am not inclined to grant leave. Petition is dismissed. K.HEMA, JUDGE. tgs