IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 CRL.A.No. 76 of 2011() ---------------------------- AGAINST THE ORDER IN CRLP.1105/2010 Dated 25/11/2010 CC.639/2009 of SPECIAL JFCM COURT (MARADU CASES) ............................. APPELLANT(S): PETITIONER ----------------------------------------- M/S.VIJAYA BANK, REP BY ITS SR.BRANCH MANAGER, GANESH S, CHEROOTTY BRANCH NAGARAM AMSOM, DESOM, KOZHIKKODE TALUK. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): ACCUSED & STATE OF KERALA ------------------------------------------------------------------- 1. SARASU.V, W/O.CHANDRAN K AGED 54 YEARS, U.D.TYPIST, DEPUTY COLLECTORATE (G) CIVIL STATION, NEDUNGOTTOOR AMSOM DESOM,KOZHIKKODE, CIVIL STATION.P.O. 673 001. 2. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.K.M.JAMALUDHEEN FOR R1 SMT.LATHA PRABHAKARAN FOR R1 PUBLIC PROSECUTOR MR. P.A SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J -------------------------------- Crl.Appeal.No.76 OF 2011 --------------------------------------- Dated 28th March, 2011 J U D G M E N T This petition is filed to grant special leave to file appeal against an order of acquittal. 2. Petitioner is the complainant, which is a bank. A complaint was file by petitioner alleging offence under Section 138 of Negotiable Instruments Act ('NI Act' for short) against first respondent before the Magistrate Court. 3. To prove the case, PW1 was examined and Ext.P1 to P7 were marked. The court on analysis of the evidence found that complainant has not discharged the burden to prove that cheque was drawn by accused as alleged and accused was acquitted. 4. Learned counsel for petitioner argued that Ext.P1 cheque was issued by first respondent to complainant and it was dishonoured and a dishonour memo, Ext.P2 was produced. A lawyer notice-Ext.P3 was sent demanding money. But no reply was sent and no payment was also effected. These are sufficient to prove that first respondent has committed the offence under Section 138 of NI Act. But accused is acquitted on the basis of CRA.76/11 2 erroneous finding. 5. Learned counsel for first respondent argued that trial court has considered various aspects in paragraph 10 and found that there is no evidence to prove to whom cheque was issued. PW1 is the Senior Manager who has nothing to do with the transaction and he cannot say whether accused has executed the cheque. Trial court considered this aspect and entered a finding that complainant has not proved execution of cheque. Hence there is no ground to interfere with the order of acquittal. 6. On hearing both sides and on going through the order under challenge, I find that trial court considered the rival contentions in the right perspective. It is noted in paragraph 10 of the order that nowhere in the complaint or proof affidavit filed by PW1, it is stated to whom cheque was issued. PW1 has not even given evidence to that effect. He has not seen accused executing the cheque. PW1 is the Senior Manager and learned counsel for first respondent pointed out that payee is shown as “Vijaya Bank” without even mentioning the name of branch. This fact was admitted by PW1. It is held by trial court in paragraph 10 as follows: “10. It is true that with regard to her signature on the cheque no dispute was raised. But, merely because of the fact that the complainant CRA.76/11 3 could be able to produce a cheque an inference that it was drawn by the accused for payment of the amount of money in discharge of debt or liability cannot be drawn. So also, the complainant cannot claim the benefit of the presumption unless it is proved that the cheque is one executed by the accused. It is true that the complainant is a body corporate. But nowhere in the complaint or in the proof affidavit filed by PW1 stated to whom the accused issued the cheque. However, in the complaint it is seen averred that “At the time of issuance of said cheque the complainant was made to believe that there is sufficient amount to honour the same in the account of the accused”. PW1 in his proof affidavit it is seen stated that, “the accused has assured the complainant that there is sufficient balance in the account of the accused to honour the cheque and believing and relying upon the said assurance the the cheque was presented on 27.1.2006” It is thus obvious that PW1 is not the person to whom the cheque was stated to have been given. PW1 has not given evidence that he has seen the accused executing the cheque. It can, therefore, be said that though the cheque was marked as an exhibit through PW1 the evidence of PW1 is of no help to the complainant in proving the execution of the cheque by the accused.” It cannot be said that the above findings are perverse or unsustainable. I find no reason to interfere with the impugned order. This appeal is dismissed. Sd/- K. HEMA, JUDGE. sou. //True Copy//