Soman vs Sanalkumar
2021 Latest Caselaw 15501 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE P.SOMARAJAN
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                         CRL.A NO. 386 OF 2006
 AGAINST THE ORDER/JUDGMENT IN ST 487/2003 OF JUDICIAL MAGISTRATE
            OF FIRST CLASS -I,NEDUMANGAD, THIRUVANANTHAPURAM


APPELLANT/COMPLAINANT:

             SOMAN
             S/O SARANGADHARA PANICKER ,ELIPPARAKONAM THADATHARIKATHU
             VEEDU, ELIPPARAKONAM, KULAPPADA.P.O.

             BY ADV SRI.NAGARAJ NARAYANAN



RESPONDENTS/ACCUSED & STATE:

    1        SANALKUMAR
             THERIYAMVILAKATHU VEEDU, MUKKALI,
             KOTTAKKAKAM MURI, ARYANAD, ERAVOOR.

    2        STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             R1 BY ADV. SRI. LATHEESH SEBASTIAN
             R2 BY ADV. SRI. RAMESH CHAND, PUBLIC PROSECUTOR




     THIS    CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 386 OF 2006
                                2



                          JUDGMENT

Aggrieved by the judgment of acquittal of

accused in a prosecution under Section 138 of

the N.I. Act, the complainant came up.

2. The accused was acquitted by the trial

court on the basis of improbability and

inconsistency in the oral evidence tendered by

the complainant PW1 with respect to the

execution of cheque in question. The

improbabilities raised by the trial court are

the following: i). The cheque was prepared as

a type written one. No plausible or

satisfactory explanation forwarded by the

complainant under what circumstance the cheque

was prepared as a type written one, with the

intention to wriggle out of the liability and

to prove the handwriting of the cheque, which

would certainly cast a reasonable doubt on the CRL.A NO. 386 OF 2006

veracity and genuineness of the due execution

of a cheque. ii). On the reason that he had

given inconsistent version with respect to the

execution of the cheque. At first advanced a

case that the cheque was signed by the accused

in his presence and what is brought is only a

type written cheque at the time of borrowal of

the amount in question. Later on, during the

cross examination, he had overturned the said

version by advancing that what is brought

before him is a signed cheque. The

inconsistency is writ large on its face. And,

iii). on the reason that he had no plausible or

acceptable explanation as to how he had

collected such a huge amount of Rs.1,00,000/-,

for which admittedly he has no evidence either

to show that it was kept in any bank account or

drawn from any bank account. On the other hand,

the learned Magistrate had taken into

consideration of the relation between the CRL.A NO. 386 OF 2006

parties. They are near relatives and friends.

Of course, it was submitted that how the cheque

came into the hands of the accused, that too, a

signed cheque, was not explained by the

complainant satisfactorily. But going through

the cross examination, it is clear that no such

question was raised during the course of

examination.

Insofar as execution of a document or

cheque is concerned, there cannot be any

presumption either under any of the provision

of statute or under Section 118 or 139 of the

N.I. Act. There should be satisfactory

evidence regarding the due execution of the

cheque. The inconsistency brought out during

the cross examination regarding the material

aspects of due execution of the cheque is so

fatal and as such, I could not find any reason

for interfering with the judgment of acquittal CRL.A NO. 386 OF 2006

rendered by the learned Magistrate. The appeal

fails, dismissed.

Sd/-

P.SOMARAJAN JUDGE SPV