IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 26TH AUGUST 2011 / 4TH BHADRA 1933 CRL.A.No. 628 of 2005(F) ----------------------------------- [C.C.NO.440/2002 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, NILAMBUR, DATED 16/02/2005] .................... APPELLANT/COMPLAINANT: ----------------------------------------- ABDUTTY, S/O.KAMMU, AGED 62 YEARS, R/O. V.M.HOUSE, RAMANKUTH P.O., NILAMBUR AMSOM, DESOM AND TALUK, MALAPPURAM DISTRICT, KERALA STATE. BY ADV. SRI.K.M.SATHYANATHA MENON. RESPONDENTS/1ST & 2ND ACCUSED AND STATE: ------------------------------------------------------------------------- 1. RAJAN, S/O.GOPINATHAN, POLICE CONSTABLE, EDAYATHPADI HOUSE, NILAMBUR P.O., NILAMBUR-679 329, MALAPPURAM DISTRICT, KERALA STATE. 2. K.V.GIREESAN, S/O.DAMODARAN NAIR, R/O. KARUPPAMVETTIL HOUSE, HOSPITAL HILL, NILAMBUR P.O., NILAMBUR-679 329, MALAPPURAM DISTRICT, KERALA STATE. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT BUILDINGS, HIGH COURT ROAD, ERNAKULAM, COCHIN-682 031. R3 BY PUBLIC PROSECUTOR SRI. ALEX.M. THOMBRA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.628 of 2005 ----------------------------- Dated this the 26th day of August 2011 J U D G M E N T Complainant is the appellant. He filed complaint against the two accused who were respondents 1 and 2 in this appeal alleging commission of offences punishable under Secs.465 and 420 r/w Sec.34 IPC. The appellant contended that he had borrowed Rs.20,000/- from the first accused on 5.1.2001 and as a security he had handed over three signed blank cheque leaves to the first accused. One of the cheque leaves was subsequently filled up by A1 and it was presented by A2 for encashment and a complaint was filed against the complainant alleging offence punishable under Sec.138 of N.I.Act. According to the complainant he had repaid the amount which had been borrowed by him from the first accused and that the first accused had agreed to return the cheque leaves. But it was not returned and Crl.A.No.628 of 2005 -: 2 :- hence there is an element of cheating in it. According to the complainant there is evidence to prove the offences punishable under Secs.465 and 420 IPC. 2. The complainant and one witness were examined as PWs.1 and 2 and Exts.P1 to P5 were marked. 3. The learned Magistrate after scanning the evidence found that the prosecution had failed to prove the case against the accused and hence the accused were acquitted under Sec.248(1) Cr.P.C. 4. The learned counsel for the appellant would submit that what was handed over by the complainant to the first accused was only a signed blank cheque leaf and since it was subsequently filled up it would amount to forgery. It is further argued that the first accused had promised to return the cheque leaf when he had paid Rs.20,000/- which he had borrowed from the first accused. First of all, it has to be seen that even the notice with regard to the alleged non return of the cheque leaf was sent Crl.A.No.628 of 2005 -: 3 :- by the complainant only after he received the summons in the case filed by the first accused against him alleging offence punishable under Sec.138 of N.I.Act. It was thereafter this complaint was filed. Even if it is accepted that it was the first accused who filled up the signed blank cheque leaf that does not amount to an offence punishable under Sec.465 IPC. When a signed cheque leaf is given by the drawer it gives authority to the payee to fill up the same. Whether the cheque was filled up as instructed by the drawer is a question for consideration in the case filed by the first accused against PW1 as evidenced by Ext.P5. The complainant does not say what happened to Ext.P5 case. The 2nd accused was impleaded on the premise that it was through his account the cheque was presented for collection. It is inconceivable how the 2nd accused can be fastened with the criminal liability. As rightly pointed out by the learned Magistrate the complaint in question was only a counter blast to Ext.P5 case launched against the Crl.A.No.628 of 2005 -: 4 :- complainant under Sec.138 of N.I.Act. The court below has rightly found that there is no merit in the case. The acquittal of the accused is thus confirmed. In the result, this appeal is dismissed. N.K.BALAKRISHNAN, JUDGE. Jvt