IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 Crl.L.P..No. 856 of 2010() -------------------------- ST.1898/2007 of J.M.F.C.-II, VARKALA .................... (S): PETITIONER ------------------------------ RAJENDRAN, R.S.NIVAS, MANAMBOOR VILLAGE AND DESOM, VARKALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): --------------- 1. VASANTHAKUMARI, R.S.BHAVAN, KAVALAYOOR, MANAMBOOR VILLAGE, KAVALAYOOR P.O., PIN-695 144. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl. L.P. No.856 of 2010 ---------------------------------------------- Dated 3rd September, 2010. O R D E R This petition is for special leave. 2. The petitioner was prosecuted for offence under Section 138 of the Negotiable Instruments Act, on a complaint filed by respondent herein. On an analysis of the evidence on record which consists of oral evidence of PW1, Exts.P1 to P5, DW1, Exts.D1 to D4, it was found by the trial court that the prosecution could not prove execution of cheque for discharge of a debt of Rs.75,000/-, as claimed. The case of accused was that Ext.P1 cheque was issued only by obtaining signature of the accused in the blank form in a transaction of Rs.20,000/- in between the complainant and husband of the accused. The court, after analysing the evidence, entered a finding that the probability of misusing Ext.P1 by obtaining the same in blank form cannot be ruled out. 3. Learned defence counsel submitted that execution of the cheque was admitted in the reply notice. (A copy of reply notice was also handed over to this court). Hence, the finding that execution is not proved cannot be sustained, it is submitted. Crl.L.P. No.856/10 2 On going through the reply notice, it is clear that the execution was not only admitted, but the whole transaction was disputed also. It is stated in the said notice as follows :- “it is known to your client that there is no money transaction between my client and your client as alleged in your notice and as such there is no question of discharge of liability arising out of the cheque, ........ That the husband of my client borrowed an amount of Rs.20,000/- (Twenty thousand rupees) from your client and at the time of the said transaction your client insisted my client's husband to give a signed blank cheque of my client as a security for repayment. That my client's husband at that time itself showed his inability to issue such a blank signed cheque of my client in favour of your client since my client was not holding a cheque book due to the poor balance in her account.” 4. According to learned defence counsel, as per the reply notice, accused insisted for returning the cheque, and the execution was admitted by him. On a reading of the extract from the reply notice referred above, it is clear that the execution of the cheque and the transaction between accused and complainant were flatly denied by accused. In such circumstances, as rightly held by the trial court, mere signing of Crl.L.P. No.856/10 3 an instrument cannot be equated with execution of the same. The petitioner was not able to substantiate that the findings of the trial court on execution are unsustainable. In such circumstances, I do not find any reason to allow this Special Leave Petition. Petition is dismissed. K.HEMA, JUDGE. tgs