Mohammadali K. v. Aboobacker K. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933** **CRL.A.No. 1387 of 2004(A)** **-------------------------** **AGAINST THE JUDGEMENT/ORDER IN CRLP.437/2004 CC.3520/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR** **....................** ## **APPELLANT/COMPLAINANT** **-----------------------------------------** **MOHAMMADALI K., S/O.HYDROSE, KARIMPANAKKAL HOUSE, KEERTHIPPADY, NILAMBUR.** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT(S)/ACCUSED AND STATE.** **----------------------------------------------------------** **1. ABOOBACKER K., S/O.MOIDEEN KURIKKAL, MUTHUKAD, NILAMBUR R.S. P.O., NILAMBUR TALUK.** **2. STATE OF KERALA, REP: BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 ADV. SRI.BABU S. NAIR** **R2 PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **N.K.BALAKRISHNAN, J ----------------------------------------Crl.Appeal No. 1387 OF 2004 ---------------------------------------Dated this the 10[th] day of August, 2011.** ## **JUDGMENT** The complainant in a case filed under Section 142 of Negotiable Instruments Act against the accused alleging offence under Section 138 of that Act is the appellant. The case of the complainant is that accused owed to him an amount of Rs.25,000/- and to discharge that debt/liability Ext.P1 cheque was issued which on presentment was dishonoured due to insufficiency of funds. On receipt of the dishonour memo statutory notice was sent. It was acknowledged by the accused. No reply was sent. The cheque amount was not paid. Hence the complaint was filed. 2. The complainant got himself examined as PW1 and Exts.P1 to P14 were marked. The accused got himself examined as DW1. Ext.D1 the FSL report was also marked. 3. The learned Magistrate found that as per Ext.D1, except the name and signature found on Ext.P1 all other 2 **Crl.Appeal No. 1387 OF 2004** writings are not that of the accused and hence the learned Magistrate disbelieved the evidence of PW1 that Ext.P1 was executed and handed over by the accused to the complainant in discharge of a debt as averred in the complaint. 4. The learned counsel for the appellant would submit that though the case of the accused is that with regard to some other transaction, a signed blank cheque leaf was given to one Kunhimanu and misutilising the same this complaint was filed against him that Kunhimanu was not examined nor was any reply sent by the accused to deny the contentions raised in the statutory notice. The learned counsel further submits that when Ext.P1 is proved to contain the name and signature put by the accused himself, the burden shifts on to the accused to prove his case of giving it to Kunhimanu. The learned counsel further submits that even if it is accepted that the name of the payee, the date and the amount shown therein were not written by the drawer himself that does not mean that the cheque was not **Crl.Appeal No. 1387 OF 2004** 3 duly executed in favour of the payee. According to the learned counsel, when the cheque is signed and issued by the accused the presumption should be that the person to whom it was given is empowered/authorised to fill up the unfilled cheque handed over to him. This argument is stoutly resisted by the learned counsel for the accused/respondent, pointing out that the evidence given by PW1 stands negated by the evidence given by the accused as DW1. He has given details of the circumstances under which his signed cheque leaf happened to be given to Kunhimanu and how it could have reached the hands of the complainant. 5. The learned counsel for the accused would submit that the primary burden is always on the complainant to prove due execution of cheque. The case originally set-up by PW1 was that the entire writings in Ext.P1 were made by the accused in his presence and thereafter it was signed by him. It was further asserted by him that it was drawn and signed by the accused with his own pen. But that part of the **Crl.Appeal No. 1387 OF 2004** 4 evidence was found to be a tissue of false wood. For that purpose, the learned counsel relied upon the fact that the accused took upon himself the task of getting the disputed document (Ext.P1) to be compared with his admitted handwritings and signatures. The report (Ext.D1) received from the expert proved that except the name and signature all other writings were not that of the accused. Therefore, the learned counsel for the accused is right in her submission that evidently Ext.P1 was filled-up at a later point of time. The aforesaid circumstances according to the learned counsel would perforce probabilise the case of the accused that Ext.P1 was a blank cheque leaf handed over by him to Kunhimanu. It was further stated that Kunhimanu mentioned above is a close relative of PW1 and so Kunhimanu has handed-over the cheque leaf to PW1 to file this complaint. It is true that according to the accused, he was still liable to pay Rs.5,000/- to Kunhimanu mentioned above. But that will not in any way come to the rescue of the complainant to prove his case. The argument advanced **Crl.Appeal No. 1387 OF 2004** 5 by the learned counsel for the complainant that simply because payee's name and the amount shown in the cheque is not in the hand writing of the drawer of the cheque that is no reason to hold that it was not validly issued or that the cheque was not executed at all, for which he has relied upon the decision in **Lillykutty V. Lawrance 2003 (3) KLT 721.** Here, the oral evidence given by PW1 itself is found to be not fully true. His case based on the alleged receipt of the cheque leaf stands negated by the evidence given by DW.1, the accused. The circumstances projected by the defence is equally probable, if not more. The evidence adduced by the complainant and the accused is equally poised. The mere handing over of the signed blank cheque leaf will not rouse any presumption that it was executed as mandated by law. If only there is evidence of due execution of the cheque, the presumption u/s 139 of the Act can be drawn. That stage has not reached in this case. So much so, the decisions in **Bhaskaran Chandrasekharan Vs. Radhakrishnan 1998 (1) KLT 881, Hiten P. Dalal Vs. Brantindranath** 6 **Crl.Appeal No. 1387 OF 2004** **Banerjee (2001) 6 Supreme Court Cases 16, Lillykutty V. Lawrance 2003 (3) KLT 721, Moideen Vs. Johny 2007(2) KLT SN 15(C.No.22)** are inapplicable to the facts of this case. Learned counsel arguing for the respondent/accused has relied upon the decisions in **Joseph** **V. Gladis Sasi, 2010 (3) KLT 379, Santhi v. Mary Sherly 2011 (3) KLT 273, and Kamala S. V. Vidyadharan. M.J. And Anr AIR 2007 SC (Supp)1142** to strengthen her submission that mere proof or admission of the signature in a cheque cannot amount to proof of execution of cheque. The consistent case of the accused was that Ext.P1 bears only his name and signature. The circumstances under which it was given to Kunhimanu was explained at the very inception. In such circumstances, the non-sending of the reply cannot in any way affect the credibility of the case advanced by the accused. After Ext.D1 report was obtained, no further evidence was sought to be adduced by the complainant explaining the circumstances under which other writings in Ext.P1 **Crl.Appeal No. 1387 OF 2004** 7 happened to be in the hand-writing of another person. As stated earlier, the evidence given by PW1 that other writings in Ext.P1 were also of the accused is found to be untrue. 6. The learned counsel for the accused has also relied upon the decision in **Kamala S. V. Vidyadharan(supra)** to fortify her submission that in an appeal against the acquittal, the High Court should not ordinarily interfere. The probability factor lies more in favour of the accused. The order of acquittal is only to be confirmed. In the result this criminal appeal is dismissed. ## **N.K.BALAKRISHNAN, JUDGE** **-** smvd/mns