IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 31ST DAY OF MARCH 2011/10TH CHAITHRA 1933 CRLP.No. 241 of 2011 -------------------- ST.3344/2006 of J.M.F.C.,VADAKARA ...... PETITIONER/COMPLAINANT: GIREESH BABU, AGED 43 YEARS, S/O.KRISHNAN NAIR, LASITHA MANDIR HOUSE, NUT STREET, VATAKARA AMSOM DESOM. BY ADV. SRI.V.SETHUNATH RESPONDENTSS/ACCUSED/STATE: 1. B.N.BHARGAVAN,AGED 43 YEARS, CLERK,PUNJAB NATIONAL BANK, VATAKARA BRANCH, MAIN ROAD, VATAKARA RESIDING AT DAYANAND HOUSE, ONCHIYAM PO, VATAKARA TALUK, KOZHIKODE DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31-03-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No. 241 of 2011 ----------------------------------------------- Dated this 31st day of March, 2011. ORDER This petition is filed to grant leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. He filed a complaint against first respondent alleging offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act). As per the allegations in the complaint, accused issued a cheque, Ext.P1, for discharge of a debt of Rs.One lakh, which he borrowed from complainant. But the cheque, on presentation, was dishonoured for the reason, “exceeds arrangement”. A lawyer notice was issued, demanding payment. But, he neither paid the amount nor sent any reply to the notice received by him. Hence, the complaint. 3. Complainant examined himself as PW1 and Exts.P1 to P6 were marked on his side. On the side of the accused, no oral evidence was adduced, but Ext.D1 was marked. According to accused, he did not issue any cheque towards any liability, as alleged in the complaint. He gave two blank cheque leaves to CRLP 241/2011 2 one N.K.Rajan as security for the financial transaction between them. The complainant is the friend of said Rajan. He misused one of the cheques to squeeze money from accused. He made this defence in the statement filed in writing under Section 313 Cr.P.C. 4. The trial court considered evidence adduced in this case and found that the oral testimony of PW1 is inconsistent regarding execution of the cheque and passed an order of acquittal. The trial court in paragraph 7, at page 5, of the judgment made the following observations: “........Therefore, according to PW1 except the signature in Ext.P1, all other contents of the cheque were duly filled by hand. But on perusal of Ext.P1 cheque, it is seen that all the blank portions in Ext.P1 cheque was type written. When the accused put a suggestive question that whether Ext.P1 cheque was type written, PW1 denied the suggestion.” 5. From the above evidence, it cannot be said that execution of cheque is proved. Once execution of the cheque by the accused is not proved, offence under Section 138 of the N.I. Act will not be attracted. Hence, the order of acquittal is only legal and proper and I do not find any reason to interfere. This petition is dismissed. K.HEMA, JUDGE. Krs.