IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1298 of 2003()
1. BIJU S/O. CHACKO, RESIDING AT
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. P.SHAMEER, RESIDING AT PALIYAYILL HOUSE
For Petitioner :SRI.V.CHITAMBARESH
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/06/2009
O R D E R
M.N.KRISHNAN, J.
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CRL.A.No.1298 OF 2003
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Dated this the 9th day of June, 2009
J U D G M E N T
~~~~~~~~~~~
This is an appeal preferred against the order of acquittal in
S.T.No.590/2000 on the file of the Judicial First Class Magistrate’s Court,
Ottapalam. It is the case of the complainant that the accused had
borrowed a sum of Rs.80,000/- from him and towards the discharge of the
liability, he had issued a cheque to the Federal Bank, which when
presented for encashment returned with the endorsement `insufficiency of
funds’. A lawyer notice was issued for which no reply was sent and
thereafter the prosecution has been launched u/s.138 of the Negotiable
Instruments Act. The case of the accused appears to be that he has no
acquaintance with the complainant at all and he had given a blank cheque
to one Saidalavi which could have been used for the purpose of initiating
this action. The Trial Court at the request of the learned counsel for the
accused just before the cross examination of the complainant, wanted the
complainant to identify the accused among 15 persons who were allowed
to stand on the back of the Court hall. Strangely, the complainant said
that the accused was not among them. Thereafter, the accused was
CRL.A.No.1298 OF 2003
2
asked to enter the `accused dock’ and the complainant stated
that he does not know him and that he has no transaction with
that person. In the chief examination, the second answer is that
the accused is a friend of him. When confronted with such a
difficult situation, it is attempted to be explained by saying that
the accused was not seen by the complainant for the last 3
years and that he had gone fat. One might grow fat, but the
complainant can not afford to be so flat in failing to understand a
friend of him to whom he is alleged to have advanced a loan of
Rs.80,000/-. To crown all these things I may also refer to the
age shown in the complaint. Initially, it was endorsed that the
complainant does not know the age of the accused. Most
probably, somebody felt about the inaccuracy of the same and
therefore it was corrected and the age was shown as 40 years.
In fact, the accused was hardly aged 22 years at the time of the
alleged advancing of the amount. So, the contention of the
accused that he has no acquaintance with the complainant and
he had not issued any cheque to the complainant is proved in
CRL.A.No.1298 OF 2003
3
abundance by the conduct of PW1 himself. In law, execution of
the cheque has to be proved and if it is proved, then the only
question of presumption will arise. It is also settled principle of
law that the mere admission of a signature in a document does
not amount to admission of the execution of the document. In
the back drop of the materials available, that the complainant
even does not know the accused, I do not feel it necessary to
look into any other document. The case of the complainant has
to be totally disbelieved. This is what has been precisely done
by the learned Magistrate and I do not find any ground to
interfere with the said decision and therefore this criminal appeal
lacks merits and it is dismissed.
M.N.KRISHNAN, JUDGE
an.