YOHANNAN N M Vs. P N SABU

JUDGEMENT

(1.) The complainant is the appellant. He filed the complaint against the first respondent (herein after referred to as respondent) alleging offence under S.138 of NI Act. Ext. P1 is the cheque dated 08/10/2003 for Rs.4 lakhs drawn on the Co - operaive Urban Bank, Kenichira branch. The appellant contended that Ext. P1 was issued by the respondent to discharge a legally enforceable liability. When presented for encashment, it was returned dis - honoured on the ground of insufficiency of funds. Statutory notice was sent to the respondent which was acknowledged by him but no reply was sent. The amount was also not paid. Hence the complaint was filed.

(2.) The complainant got himself examined as PW 1 and the Manager of the bank was examined as PW 2. Exts. P1 to P8 were marked. The learned Magistrate after thorough scrutiny of the evidence found that Ext. P1 cheque is in such a condition that it cannot be compared with the admitted signatures of the accused, due to the spreading of ink in that portion. It was contended by the defence that the signature purported to be of the accused found on Ext. P1 was different from the signature of the accused seen in Ext. P7, the account opening form and Ext. P8, the specimen signature card which were proved by PW 2. Considering all the aspects, the learned Magistrate acquitted the accused.

(3.) The learned counsel for the complainant submits that, the learned Magistrate was not justified in holding that the signature found on Ext. P1 was not proved to be that of the accused. It is argued that when Ext. P1 was presented for collection it was bounced only on the ground of insufficiency of funds and not on the ground of difference in signature of the drawer. The evidence given by PW 2, the bank Manager has been relied upon by the complainant in support of his contention that when a cheque is presented for encashment, first of all, the date and signature found on it would be verified and on such verification if the signature was found to be different, it would be dishonoured on that ground. Therefore, the learned counsel for the appellant would submit that since no such ground for dishonour of Ext. P1 cheque was mentioned, it has to be held that there was no difference in the signature of the accused. But that submission is countered by the learned counsel who would submit that when Ext. P1 was presented for collection PW 2 was not there in the bank and so he could not have direct knowledge regarding dishonour of Ext. P1 cheque. It is also pointed out that, when Ext. P1 was shown to him to state whether the signature in the specimen card and the account opening form are different or not, only an evasive answer was given by him. That showed that he was disinclined to tell the truth. The difference or vagueness of the signature due to spreading of ink is so loudly obtrusive that PW 2 was not expected to give such an evasive answer. Therefore, relying upon the evidence given by PW 2 alone, it cannot be held that there is no difference in the signature found on Ext. P1 cheque. It was admitted by PW 2 that he does not know whether the signature in the cheque was compared when Ext. P1 was presented for collection.