IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 19TH JANUARY 2011 / 29TH POUSHA 1932 CRL.A.No. 86 of 2011() ---------------------- CC.88/2008 of JFCM III, KOTTARAKKARA. .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ BABU RAJ, RAJALAYAM, KARINGANNOOR MURI, KARINGANNOOR VILLAGE, KOLLAM. BY ADV. SRI.O.D.SIVADAS SRI.S.SHAJI RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. VIDHYADHARAN, S/O.RAMAN, NIRAPPUVILA VEEDU, KUDAVATTOOR P.O., ODANAVATTAM-691512. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.86 of 2011 ----------------------------------------------- Dated 19th January, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. Appellant is the complainant. According to him, accused, who is first respondent herein borrowed a sum of Rs.50,000/- from the complainant and issued Ext.P1 cheque for discharge of the same. On presentation of the cheque to the bank, it was returned with the endorsement “funds insufficient”. A lawyer notice was issued demanding payment, but no payment was made, though accused accepted the notice. Hence the complaint was filed. 3. To prove the case, complainant examined PW1 and PW2 and marked Exts.P1 to P6. The accused took up a defence that his brother-in-law purchased some gold ornaments from Kanchanam Fashion Jewellery, Oyoor and he paid some amount also. They assured to pay the balance amount after the marriage and as security, a blank cheque belonging to appellant was given. Subsequently, complainant misused the blank cheque and filed this false complaint, it is contended. The appellant did not owe any money to the Crl.Appeal No.86/11 2 complainant and he did not issue any cheque for any liability. 4. On an analysis of the evidence on record, trial court found that the case set up by accused is more probable and that the complainant failed to prove the execution of Ext.P1. Thus, complainant failed to establish that the cheque (Ext.P1) was issued to the complainant for discharge of any legally enforceable debt. 5. Referring to the evidence of PW1, the complainant, the trial court observed as follows : “Any way, the complainant in cross examination would fairly admit that he is the proprietor of Kanchanam Jewellery at Oyoor. It is also admitted by him that he is a money lender by profession. Further PW1 would admit that the brother-in-law of the accused had purchased some gold ornaments from Kanchanam Jewellery. The case of the accused is that Ext.P1 was a blank cheque issued by the accused to the complainant as a security for the balance amount of Rs.10,000/-. The accused is not at all admitting the execution of Ext.P1 cheque.” 6. The trial court also entered findings regarding the nature of the writings in the cheque and also the signature in Ext.P1. The trial court also made a reference to a writing on the reverse side of the cheque. It also took note of the fact that Ext.P3 intimation was sent by the bank to Kanchanam Fashion Crl.Appeal No.86/11 3 Jewellery and observed that Ext.P1 must have been in custody of Kanchanam Fashion Jewellery and it was presented through the account of the jewellery. The trial court made the following observations : “It is to be noted that the signature of the accused is put in a different ink than the other writings regarding the date, payee's name and amount. PW1 cannot say who had written all the entries in Ext.P1. The falsity of the contention raised by PW1 is evident from the entry made in the reverse side of Ext.P1. In the reverse side of Ext.P1 the person who had written the name of the payee, date and amount had written these words-- “CO 158 calculation അയയണ” PW1 could not say anything regarding these entries. Further the relationship of Ext.P1 with Kanchanam Jewellery is evident from Ext.P3 intimation given by the Federal Bank. It is to be noted that Ext.P3 is addressed to Kanchanam Fashion Jewellery, Oyoor. This itself shows that Ext.P1 was in th custody of Kanchanam Jewellery and the same was presented through the account of Kanchanam Jewellery.” 7. Learned counsel for appellant could not give any explanation regarding the observations made by the trial court on the difference in the ink in the writing and also the signature. The trial court also made observations regarding the defence evidence. The observations are as follows : “DW1 is the brother-in-law of the accused. He had produced Ext.D1 receipt issued from Kanchanam Jewellery regarding the borrowal of the gold ornaments. It is evident that a sum of Rs.37,084/- was the total amount of the gold ornaments and a sum of Rs.32,940/- was the outstanding balance. DW1 would Crl.Appeal No.86/11 4 further contend that he had paid some amount and the balance amount is only Rs.5140/-. The entries made in Ext.D1 clearly show that the outstanding balance is only Rs.5140/-. DW1 would further contend that Ext.P1 was issued by the accused as a security for the transaction.” 8. Learned counsel for appellant submitted that Ext.D1 is a piece of paper and no value can be attached to the same. However, it is clear from the order under challenge that the trial court acquitted the accused not merely based on Ext.D1. The trial court took note of various circumstances, facts and evidence and came to a conclusion that the complainant did not prove execution of the cheque. I do not find any reason to interfere with the findings. There is no ground to admit this appeal. The appeal is dismissed. K.HEMA, JUDGE. tgs