IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 24^TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945 CRL.A NO. 154 OF 2020 AGAINST THE JUDGMENT DATED 15.10.2019 IN S.T.NO.3123/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM APPELLANT:

P.VINOD, SECRETARY IN CHARGE, KOTTAKKAL JANAKEEYA CO-OPERATIVE URBAN SOCIETY, KOTTAKKAL, MALAPPURAM.

BY ADVS.SRI.P.P.JACOB SMT.MARIYAM JACOB RESPONDENTS:

1 SOMASUNDHARAN K., KALYANI SOUDHAM, MUNDUPARAMBA.P.O., MALAPPURAM DISTRICT-676503.

(MALAPPURAM POLICE STATION LIMIT)

2 THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

BY ADVs R1 BY SRI.K.T.SIDHIQ R2 BY SMT.SEENA C, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR HERAING ON 24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 24^th day of May, 2023 The appeal on hand is originated from a judgment passed by Judicial First Class Magistrate Court, Malappuram (for short ‘the trial court’) on 15.10.2019 in S.T.No.3123/2015.

2. The appellant is the complainant in S.T.No.3123/2015 which is a prosecution launched on the basis of a complaint filed by him under Section 142 of Negotiable Instruments Act, 1881 (for short ‘the NI Act’) alleging commission of an offence punishable under Section 138 NI Act. The trial court on being convinced from the sworn statement recorded from the complainant that a prima facie case is made out, took cognizance and issued process to the accused for his appearance before the court. Accused entered appearance on summons being served on him. The accusations made against him in the complaint, were read over and explained to him. He pleaded not guilty and claimed to be tried.

3. The trial was commenced and the complainant examined himself as PW1 and marked Exts.P1 to P7 in evidence. The accused was questioned with reference to the incriminating circumstances brought on record against him by the complainant and he denied all those. Accused had taken a specific stand during examination under Section 313(1)(b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) that a cheque leaf was obtained by the complainant from him while he was working in an Arya Vaidya Sala and misusing it, the prosecution in question was launched. Grounds having not been made out to record an order of acquittal of the accused, he was asked to adduce evidence in defence, but he did not.

4. The Trial court found that the complainant failed to prove the execution of the cheque beyond reasonable doubt and accordingly acquitted the accused. Aggrieved by the judgment and challenging it as illegal, the appeal on hand was filed.

5. According to Sri.P.P. Jacob, the learned counsel, the acquittal of the accused by the trial court is illegal and therefore the judgment assailed in the appeal is only to be reversed and the respondent is to be found guilty of the offence under Section 138 N.I. Act, convicted and sentenced.

6. According to him, the ingredients constituting the offence under Section 138 N.I. Act have been complied with by the complainant and those are substantially proved by the documents marked in evidence. According to him, the trial court has relied on Joseph M.J. v. Gladis Sasi [2010 (3) KLT 379], Padmanabhan v. Vasudevan Namboodiri [2010 (3) KLT 216] and Santhi v. Mery Sherly and Another [2011 (3) KLT 273] to take a view that mere admission of signature in a blank cheque alone will not constitute admission of execution of a cheque.

7. According to the learned counsel the presumption under Section 139 N.I. Act will be attracted in a case where the accused either admits the drawal of the cheque or else the complainant establishes that the cheque was drawn by the accused. According to him, when there was no admission from the accused of execution of the cheque or it was not proved by evidence, the presumption under Section 139 N.I. Act would not be attracted. According to him, the standard of proof req