IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 1082 of 2003() ----------------------------------- CC.412/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... APPELLANT(S): COMPLAINANT ------------------------- E.T.SASEENDRAN S/O. E.T.NAIR, KARUNA HOUSE, TRICHUR-4. BY ADV. MR.P.R.VENKETESH RESPONDENT(S): ACCUSED ---------------------- S.RAMESH, IDEALCONSTRUCTIONS, VADAKKENCHERRY P.O., ALATHUR. ADV. MR.JOBI JOSE KONDODY FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1082 OF 2003 ------------------------------ Dated this the 18th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal in C.C.No.412/2000 of the JFCM, Alathur. It is the case of the complainant that the accused had borrowed a sum of Rs. One lakh on 27.6.1999 and the accused towards the discharge of the liability issued a cheque on 27.12.1999 which when presented for encashment returned with the endorsement of insufficiency of funds. Thereafter prosecution was initiated after satisfying the statutory requirements. The case of the defence appears to be that he has no connection with the complainant at all but he has got some transaction with PW1 and when the accused borrowed a sum of Rs.35,000/= from PW1, he demanded for some property and along with it stamp papers and two blank signed cheques. It is is the case of the accused that the document was initially registered in the name of Elsy thereafter it was transferred in the name of Joseph and Paulose and ultimately it had been purchased by the 2 CRL.A.NO.1082/03 mother of the accused. So, in other words, the specific contention is that Ext.P1 cheque is not issued towards the discharge of the liability. Admittedly the complainant has not come before the court to adduce any evidence. The appellant informed that even the power of attorney is not produced to show the locus standi of PW1. It was contended before the court below that a power of attorney holder unless has special knowledge of the transaction may not be a competent witness to speak about the transaction. I had meticulously perused PW1 who is really representing the complainant. He had deposed in chief examination that he knows about the transaction between the accused and the complainant. The details are not forthcoming at all. It is suggested that Pw1 is a Government servant and that is why the case is filed by the complainant. It has to be remembered that the definite case of the accused is to the effect that at the time of borrowal of Rs.35,000/= from PW1, he happened to give two blank signed cheques and that is the cheque which had been made use for filing the case. There is no admission regarding the execution of the document. He only admits his signature in 3 CRL.A.NO.1082/03 Ext.P1. A perusal of Ext.P1 would show that in the cheque there is a signature of two persons namely the accused and one E.T. Surendran. I do not know why the name of E.T. Surendran, who is the complainant, is seen written after the signature of the accused in the case. The factum of early transaction between PW1 and the accused appears to be proved for the reason that there had been series of transactions with respect to the property. It is in this backdrop, we have to analyse and find out whether the evidence is sufficient to warrant conviction. As stated by me earlier, PW1 has never stated in the chief examination that he was present when the alleged transaction took place. What is there in the evidence is that he knows about the transaction between the complainant and the accused. Therefore, the absence of examination of the complainant goes a long way to support the case of the accused. In spite of the specific challenge in the cross examination, it was the duty of the complainant to adduce sufficient evidence to satisfy the conscious of the court. Mere admission of a signature in the cheque does not amount to prove the execution of the cheque. It has to be proved just like 4 CRL.A.NO.1082/03 any other document. Only when execution is proved, the presumption available under sections 118 and 138 of the N.I. Act will come to play. Now as stated by me earlier, the evidence of PW1 does not inspire confidence to uphold the case of the complainant whereas in order to prove the probability of the case, the defence had produced Exts.D1 to D3 and examined the accused as well as another witness. So when these materials supplied are weighed one against the other, I find that preponderance of probability is more in the case of the accused rather than the complainant. It is true that no reply had been sent. That does not mean that transaction is proved. Therefore, I do not find any materials to disturb the finding especially in the backdrop of the decision of the Apex Court that when two possible views are available, the view which supports the accused has to be taken in criminal case. Therefore, the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.1082/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1082 OF 2003 ------------------------------ 18th day of June, 2009 JUDGMENT 6 CRL.A.NO.1082/03