IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 53 of 2003(C)
1. T.J.JOHN, S/O. JOHN,
... Petitioner
Vs
1. CICILIAMMA MATHEW,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.BOBY MATHEW
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/07/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.53 OF 2003
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Dated this the 14th day of July, 2009
J U D G M E N T
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This is an appeal preferred against the order of acquittal
of Judicial First Class Magistrate Court – I, Kanjirappally, in
C.C.404/00. The prosecution was initiated u/s.138 of
Negotiable Instruments Act. It is the case of the complainant
that the accused had borrowed a sum of Rs.1 lakh on 2.1.2000
and towards the discharge of the liability had issued a cheque
on 28.2.2000 which when presented got dishonoured on
25.3.2000 and when a lawyer notice was sent, it was returned
as `unclaimed’ and so the prosecution was initiated thereafter.
The case of the defence is of a total denial. Neither the
execution of the cheque nor the transaction is admitted. When
it is so, the burden will be very heavy on the complainant to
establish the case. In the cross examination, the complainant
has been confronted with the signature of the accused, alleged
to be put by him in the cheque as well as with that of specimen
signature of the accused, when he opened his bank account. It
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was summoned and produced by the complainant himself. The
complainant himself has to admit before the court that, the
signature in Exts.P1 and P7 are different and he would add
“it is very much different”. According to him, in Ext.P1 the name
and figure was written by the son of the accused, namely Tomy,
and the accused has signed it. But as stated by me earlier that,
when there is so much of difference between the signatures,
especially the signature in Ext.P7, is in anterior point of time it
has to be held that the complainant has to satisfactorily
establish that Ext.P1 is executed by him. I am afraid that the
evidence is totally lacking in this case. The complainant did not
take any steps to send the signature for expert comparison nor
did he take any steps to see that the hand writing in the
cheque, is that of the son of the accused, namely Tomy. So,
only the mere oral vibration of the complainant is available. The
learned counsel would submit before me that, no reply has
been sent and that the accused has not been examined in this
case. It has to be held that u/s.315 Cr.P.C. no accused can be
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compelled to give evidence and the non examination of the
accused can not be commended upon in a criminal case.
Since the complainant himself has failed to establish the
execution of the cheque which always rests upon him, the non-
availability of evidence from the side of the accused, can not be
faulted with. Therefore, I can not hold that the court below has
wrongly decided the issue. It is strictly done in accordance with
law. Lastly, the learned counsel requested for a remand. The
cheque is of the year 2000 and 9 years have lapsed and there
had been a total denial right from the inception but the
complainant did not take any steps and therefore being a
criminal trial, the court can not attempt to fill lacuna by providing
chances which will prejudicially affect the accused. So the
prayer for remand can not be allowed. Therefore appeal lacks
merits and it is dismissed.
M.N.KRISHNAN, JUDGE
ami.