IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 CRL.A.No. 1689 of 2010() ------------------------ ST.215/2009 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... APPELLANT(S): COMPLAINANT ------------------------- KECHERI CHITS & FINANCE, CHANGANACHERRY, REPRESENTED BY ITS MANAGER, RADHAKRISHNAN NAIR, AISWARYA HOUSE, PUZHAVATHU, CHANGANACHERRY. BY ADV. SRI.H.HAMZA ROWTHER RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. JAYAMMA VARGHESE, KOOVAKKATTU HOUSE, UMBIDY P.O., THOTTAKKADU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1689 of 2010 ----------------------------------------------- Dated 8th September, 2010. JUDGMENT The appellant is the complainant. He filed a complaint against the first respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. After trial, the court acquitted the accused. Hence, this appeal. 2. According to the complainant, a cheque was drawn by the accused as per Ext.P1 in favour of the complainant for discharge of a debt of Rs.25,000/-. The cheque, on presentation, was dishonoured on the ground “funds insufficient”. A lawyer notice was issued to the accused demanding payment of the amount. Though notice was accepted, no amount was paid and hence complaint was filed. 3. PW1 was examined and Exts.P1 to 10 were marked on the side of the complainant. The trial court found that the burden is upon the complainant to prove that Ext.P1 cheque was issued for the discharge of legally enforceable [Crl.A.No.1689/2010] 2 debt. Certain admissions on the part of the complainant was relied upon to acquit the accused. 4. According to learned counsel for appellant, the accused put forward a definite case, but she failed to establish the same. No evidence was adduced by the accused to probabilise her defence. The case of the accused was that Ext.P1 cheque was given as a security in respect of another transaction between the accused and another person by name M.D. Soman. But, according to him, the cheque was not issued for discharge of the debt as alleged in the complaint. This case is not established by the accused, it is submitted. 5. On gong through the order under challenge, I find that the trial court noted that as per the defence contention, there is no financial transaction between the complainant and accused. According to accused, the cheque produced in the case was a blank signed cheque which was given to M.D.soman as security, while depositing some amount in an institution in which accused was working as an agent. The trial court found that PW1 in cross-examination stated that [Crl.A.No.1689/2010] 3 there was absolutely no transaction between accused and the complainant and that the complainant testified that there was some chitty transaction with the said Soman. 6. The trial court placed reliance upon the evidence given by PW1. In his evidence, PW1 stated that he did not remember the date on which the cheque was issued. When a question was put to him whether there was any witness, he stated that it was M.D.Soman. When another question was put regarding the difference in the ink in the signature and the entires in the cheque, he gave evasive answers. Regarding the contention that the accused failed to establish his case, I would only say that in a case involving offence under Section 138 of N.I. Act it is for the complainant to establish that the cheque was drawn for discharge of enforcible debt or liability and the failure on the part of accused to probabilise the defence case cannot be taken as ground to prove the complainant's case. 7. Learned counsel for appellant was not able to substantiate that the findings of the trial court are wrong or unsustainable. There is no reason to admit this appeal. The [Crl.A.No.1689/2010] 4 finding that the complainant failed to discharge the burden to prove that the cheque Ext.P1 was issued for discharge of the debt. This appeal is dismissed. Sd/- K. HEMA, JUDGE. krs.