IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 CRL.A.No. 53 of 2003(C) --------------------------------- CC.404/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, KANJIRAPPALLY .................................................................................. APPELLANT(S): COMPLAINANT: --------------------------------------------- T.J.JOHN, S/O. JOHN, THEKKEMURIYIL, KANIMALA P.O., ERUMELY. BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): ACCUSED & NOT PARTY: -------------------------------------------------------------- 1. CICILIAMMA MATHEW, KILIROOPARAMBIL, PONKUNNAM P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.BOBY MATHEW FOR R1 SMT.K.MEERA FOR R1 SRI.C.M.NAZAR, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.53 OF 2003 -------------------------- Dated this the 14th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal of Judicial First Class Magistrate Court - I, Kanjirappally, in C.C.404/00. The prosecution was initiated u/s.138 of Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs.1 lakh on 2.1.2000 and towards the discharge of the liability had issued a cheque on 28.2.2000 which when presented got dishonoured on 25.3.2000 and when a lawyer notice was sent, it was returned as `unclaimed' and so the prosecution was initiated thereafter. The case of the defence is of a total denial. Neither the execution of the cheque nor the transaction is admitted. When it is so, the burden will be very heavy on the complainant to establish the case. In the cross examination, the complainant has been confronted with the signature of the accused, alleged to be put by him in the cheque as well as with that of specimen signature of the accused, when he opened his bank account. It 2 CRL.A.No.53 OF 2003 was summoned and produced by the complainant himself. The complainant himself has to admit before the court that, the signature in Exts.P1 and P7 are different and he would add “it is very much different”. According to him, in Ext.P1 the name and figure was written by the son of the accused, namely Tomy, and the accused has signed it. But as stated by me earlier that, when there is so much of difference between the signatures, especially the signature in Ext.P7, is in anterior point of time it has to be held that the complainant has to satisfactorily establish that Ext.P1 is executed by him. I am afraid that the evidence is totally lacking in this case. The complainant did not take any steps to send the signature for expert comparison nor did he take any steps to see that the hand writing in the cheque, is that of the son of the accused, namely Tomy. So, only the mere oral vibration of the complainant is available. The learned counsel would submit before me that, no reply has been sent and that the accused has not been examined in this case. It has to be held that u/s.315 Cr.P.C. no accused can be 3 CRL.A.No.53 OF 2003 compelled to give evidence and the non examination of the accused can not be commended upon in a criminal case. Since the complainant himself has failed to establish the execution of the cheque which always rests upon him, the non- availability of evidence from the side of the accused, can not be faulted with. Therefore, I can not hold that the court below has wrongly decided the issue. It is strictly done in accordance with law. Lastly, the learned counsel requested for a remand. The cheque is of the year 2000 and 9 years have lapsed and there had been a total denial right from the inception but the complainant did not take any steps and therefore being a criminal trial, the court can not attempt to fill lacuna by providing chances which will prejudicially affect the accused. So the prayer for remand can not be allowed. Therefore appeal lacks merits and it is dismissed. M.N.KRISHNAN, JUDGE ami.