IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 Crl.L.P..No. 1079 of 2010() --------------------------- CC.1798/2007 of J.M.F.C. - II, CHALAKUDY .................... (S): PETITIONER ------------------------------ OUSEPH, AGED 76 S/O.MANGALAM VEETTIL DEVASSY, ALOOR, DESOM VILLAGE MUKUNDAPURAM TALUK. BY ADV. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN RESPONDENT(S): --------------- 1. GEORGE S/O.CHUNANGAM VEETTIL OUSEPH, ALOOR VILLAGE, DESOM,MUKUNDAPURAM TALUK. 2. STATE OF KERALA REP BY THE PUBLIC PROSECUTOR, ERNAKULAM. ADV. SRI.K.B.PRADEEP FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.1079 of 2010 ----------------------------------------------- Dated 11th November, 2010. O R D E R This petition is for special leave to file an appeal against an order of acquittal. 2. Petitioner filed a complaint against the first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. According to petitioner, accused issued a cheque dated 25.1.2004 for discharge of Rs.1,50,000/-, which he borrowed from petitioner. The cheque was dishonoured on presentation on the ground “funds insufficient”. On 5.6.2004, a lawyer notice was issued, but it was returned and no amount was paid. Hence, the complaint was filed. 3. The trial court, on an analysis of the evidence of PW1 and Ext.P1 to P5, which are produced on behalf of petitioner and also the evidence of DW1, wife of the accused found that complainant has not discharged the burden to prove execution of the cheque. It was also held that though the complainant produced Ext.P1 cheque, there is no possibility for issuing the cheque by the accused in the year 2003, as alleged Crl.L.P. No.1079/10 2 by the complainant since the accused was not in station during the period, as admitted by the complainant. Further, the complainant/petitioner stated that the maximum amount which he advanced is Rs.50,000/- but the amount claimed in this case is Rs.1,50,000/- covered by the cheque. 4. The first respondent entered appearance in the petition for condoning the delay in filing the special leave petition. He was also heard in this petition. On hearing both sides and on going through the deposition of PW1, which was handed over to me, I do not find any reason to interfere with the findings of the trial court. 5. Learned counsel for petitioner submitted that trial court committed an error in holding that at the time when the cheque was issued, the accused was not present in station. Such an inference is drawn only on the statement given by PW1 that the cheque was given in December,2003, but he had also stated as the next sentence that he did not remember the month. Therefore, it could be any month prior to December, in Crl.L.P. No.1079/10 3 which period, petitioner would be in station, it is submitted. It is also submitted that though the accused has put forward a case that the cheque was handed over to one Pokkan George, he has not adduced any evidence to rebut the presumption under Section 139 of the Negotiable Instruments Act. It is the duty of the accused to rebut the presumption, which is available in favour of the complainant, it is argued. 6. Learned counsel for the first respondent submitted that in the light of the decision reported in Kamalammal v. Mohanan (2006(3) KLT 972), the presumption will arise only if complainant proves execution of cheque. In this case, there is admission from PW1 that the accused was not present in station in December, till 2 to 3 months prior to his examination in court. The cheque is dated 25.1.2004 and PW1 was examined on 2.6.2008 and as per the evidence of PW1, the accused would have been in station only in March, 2008. During the period 2003-08, the accused was not present in station and hence, the cheque would not have Crl.L.P. No.1079/10 4 been executed, as alleged by the prosecution, it is submitted. It is also argued that the evidence as a whole has to be looked into while taking a decision. Hence, there is no ground to interfere with the finding of the trial court. 7. Heard both sides. Perused available records and the impugned judgment. As per the proof affidavit filed by the complainant/petitioner, in lieu of chief examination, he specifically stated that when a demand for return of money was made, accused came to the shop of petitioner's friend and handed over the cheque on 25.1.2004 in Chalakkudy. PW1 admitted in cross examination that from 2003 onwards, accused was not present in the locality. He was absconding. He had not come even when his father died. He also did not attend his children's wedding during this period. His father died only 2 to 3 years back. 8. From the above evidence itself it is clear that between 2003 and 2005 the accused not was not present in station. His whereabouts were not known. Therefore, the Crl.L.P. No.1079/10 5 statement given by PW1 in the chief examination that the accused executed the cheque on 25.1.2004 is absolutely unacceptable. In the cross examination, PW1 stated that the cheque was executed in the year 2003. 9. PW1 also stated that the cheque was given in December, 2003 and immediately thereafter, stated that he did not remember in which month of 2003, the cheque was given. According to him, when the cheque was given, there were only 2 to 3 months for 2003 to expire. Therefore, from the admissions made by PW1, the cheque would have been handed over in 2003 itself. This is contradictory to the evidence given by PW1 in chief examination that the cheque was handed over from his friend's shop in January, 2004. 10. Therefore, in the light of the contradictory evidence given in respect of the execution and delivery of cheque, the court has rightly held that complainant failed to prove execution of cheque and acquitted the accused, holding that there is no acceptable evidence regarding execution of the Crl.L.P. No.1079/10 6 cheque. It is clear from the evidence discussed above that during the time at which the accused allegedly executed and delivered Ext.P1 cheque, the accused would not have even present in station and his whereabouts were not known, going by the admissions of PW1 himself. In the above circumstances, I am not inclined to grant leave to file appeal. Petition is dismissed. K.HEMA, JUDGE. tgs