IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.L.P..No. 84 of 2011() ------------------------- CC.304/2005 of J.M.F.C.-VI, NEYYATTINKARA .................... (S): LEAVE PETITIONER/COMPLAINANT ------------------------------------------------ THULASEEDHARAN NAIR, ROSE VILLA, BHAGAVATHINADA.P.O.,BALARAMAPURAM. THIRUVANANTHAPURAM. BY ADV. SRI.SANTHAN V.NAIR SRI.V.V.MITHUN SRIB.RAJESH(TRIVANDRUM) RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. AMBALATHURA.C.CHANDRABABU,. KOCHUPUTHUVAL VEEDU, AMBALATHURA.P.O., THIRUVANANTHAPURAM-695572. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. KOCHI-31. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.84 of 2011 ----------------------------------------------- Dated 28th January, 2011. O R D E R This petition is filed for special leave to file an appeal against an order of acquittal. 2. Appellant is the complainant. He filed a complaint before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act against first respondent. According to him, accused borrowed an amount of Rs.10,00,000/- and when he demanded repayment, he issued a cheque, Ext.P1 on the account maintained by him with the Bank. The cheque on presentation was dishonoured on the ground of insufficiency of funds. Thereafter, a lawyer notice was issued, but it was returned unclaimed. No payment was effected and hence, the complaint was filed. 3. PW1and PW2 were examined on the side of the prosecution and Exts.P1 to P6 were marked. The accused denied the allegations and contended that complainant was running a chitty business. The accused had some chitty transaction with complainant/appellant. In respect of such transaction, he had issued Ext.P1 cheque as security on Crl.L.P. No.84/11 2 9.2.2000 to the appellant. The cheque is not executed by him. 4. The trial court found that the complainant failed to prove that accused borrowed Rs.10,00,000/- and for that amount he issued Ext.P1 cheque in favour of complainant. PW1 is the complainant and he stated before the court that all the entries in Ext.P1 are made by the accused himself in his presence. This fact was disputed by the accused. He has a definite case that the entires are made by DW2, who was working as the Manager of the business of PW1. According to accused, it was DW2, who had made the entries. PW1 categorically deposed in cross examination that all the details in Ext.P1 were written by accused in his presence and he had also signed the same in his presence. To write all the details in Ext.P1, the same ink was used. 5. To prove the defence contention, he had caused Ext.P1 to be examined by an expert. The report of the expert is marked as Ext.D3. The expert opined that the entries in Ext.P1 and the specimen entries are not made by one and the same person. The specimen was that of the accused. Thus, this is a Crl.L.P. No.84/11 3 case where accused has disproved the case of the prosecution that the cheque was executed in the circumstances stated by the complainant. 6. Learned counsel for petitioner submitted that to prove the case the handwriting of DW2 ought to have been sent to the expert. But, that has not been done and hence, it cannot be said that accused's case is proved. I am unable to accept this argument. It is the duty of the prosecution to prove the case alleged by it. When the complainant has categorically stated that the cheque was written and signed by accused in his presence, and the accused has disputed his handwriting, the complainant ought to have proved its case by sending it to the expert. On the other hand, the accused himself got Ext.P1 sent to the expert to prove that the handwriting in Ext.P1 is not of the accused. This is more than sufficient to disprove the case set up by complainant. The argument advanced in this regard is not acceptable. 7. The accused had also took up a contention regarding the person who had made the entries in the cheque. Crl.L.P. No.84/11 4 DW2 was examined and his evidence shows that Ext.P1 cheque was filled up by DW2 in respect of another transaction. The trial court also found that it is unbelievable that a person who had given huge amount of Rs.10,00,000/- would give such amount without receiving any security from the borrower. I do not find any infirmity or perversity in the findings entered into by the trial court. The trial court has rightly acquitted the accused and hence, I am not inclined to grant special leave. This petition is dismissed. K.HEMA, JUDGE. tgs