IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 927 of 2005() ---------------------------------- CC.347/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT(S): COMPLAINANT. --------------------------------------------- K.RAGHAVAN, S/O.KUNHAMBU, KURUVAD, EZHOME, KANNUR DISTRICT. BY ADV. SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH RESPONDENT(S): ACCUSED NO.1. -------------------------------------------------- 1. BALAKRISHNAN.E.V. AKSHARA, PUZHAKULANGARA, TALIPARAMBA POST, KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.SASINDRAN R2 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.927 of 2005 ---------------------------------------------------- Dated this the 5th day of August, 2011 Judgment The complainant in a case filed under Section 138 of the N.I.Act challenges the verdict of acquittal in this appeal. The case of the complainant is that the accused borrowed a sum of Rs.40,000/- and to discharge that debt Ext.P1 cheque dated 7.3.2002 was issued by the accused which on presentment was bounced due to insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent within time. The accused did not pay the amount covered by the cheque. Hence the complaint was filed. 2. The complainant got himself examined as P.W.1 and Exts.P1 to P5 were marked. D.W.1 to D.W.3 were examined and Exts.D1 to D5 were marked. It was contended by the defence that the complainant had taken classes for the son of the accused and nine others in connection with the military recruitment. Those candidates had succeeded in preliminary test and medical test. For the second final test, the complainant was also stated to have taken classes for the son of the accused and others. The understanding was that a sum of Rs.40,000/- each Crl.A.927/05 2 was to be paid by the candidates who appeared for the classes. It is his further case that out of the ten candidates, only three candidates could succeed in the final test. Though the accused had collected cheques for Rs.40,000/- from all the ten candidates, the cheques of seven candidates who failed in the test were returned. But the three cheques of the successful candidates were not returned by the complainant, but filed cases against the parents of the three candidates. The accused is the father of one of such candidates. Pointing out certain improbablising circumstances, the learned Magistrate found that the case of the complainant is not acceptable and thus the accused was acquitted. 3. The learned counsel for the appellant would submit that even, according to the case set up by the defence, the son of the accused and other candidates were to pay a sum of Rs.40,000/- each to P.W.1; for the classes taken/service rendered and as such it is not an illegal contract. It is also contended that the evidence given by P.W.1 is acceptable but the court below was persuaded to hold otherwise because of the opinion of a private expert who stated that the signature found on Ext.P1 was not Crl.A.927/05 3 similar to the signature of the accused. 4. The learned counsel for the accused would submit that except the interested testimony of P.W.1, there is no other evidence to support the case of the complainant regarding the borrowel of the amount by the accused from P.W.1 or the handing over of the cheque as stated by P.W.1. According to the learned counsel, so long as that transaction is not proved, the complainant cannot point out other circumstances, if any, to prove his case. 5. The learned counsel for the complainant very much attacks the opinion expressed by the private expert. The learned counsel would submit that it is easy for rich and powerful people to get the opinion of such private experts. There was no valid reason for the accused not to request the court to send the disputed cheque to the Government Lab, namely, the F.S.L., Trivandrum but conveniently the accused has chosen to get it compared by a private agency. The learned counsel for the accused would submit that there are documents which would show that the admitted signatures of the accused in the account opening form, the ledger and other documents and those Crl.A.927/05 4 signatures were totally dissimilar to the signature of the accused found in Ext.P1. Therefore, even if the expert opinion is totally unacceptable for consideration, still there is acceptable evidence to hold that the signature found on Ext.P1 was not the signature put up by the accused. 6. The learned counsel for the complainant would submit that it is quite unlikely that the accused or his son would have handed over an unsigned blank cheque leaf to the complainant and so in all probability the signature found on Ext.P1 must be that of the accused. But in the absence of any better evidence, it can only be held that the signature found on Ext.P1 was not proved to be the one put by the accused. The learned Magistrate has analysed the evidence meticulously and found that the case putforward by the accused is more probable. I find no material to hold otherwise. Therefore, the order of acquittal is only to be confirmed. In the result, this appeal is dismissed. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.927/05 5 Crl.A.927/05 6