KUNNATHODI ISHAQ @ MOHAMMED ISHAQ Vs. STATE OF KERALA

JUDGEMENT

(1.) CHALLENGING the judgment dated 15.12.2007 in S.T.No.168 of 2006 of the Judicial First Class Magistrate Court -II (Forest Offences), Manjeri, the appellant herein/the complainant therein preferred the present appeal since by the above judgment, the learned Magistrate acquitted the accused, who faced the prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'), instituted at the instance of the complainant.

(2.) THE case of the complainant is that on 20.10.2004, the accused had borrowed an amount of Rs.14,000/ - with an undertaking that it will be paid within one month. As the accused failed to pay the amount within the time prescribed, on demand, the accused subsequently executed and issued a cheque for Rs.14,000/ -. The said cheque is dated 1.1.2005, which when presented for encashment, was dishonoured for insufficiency of fund in the account maintained by the accused. According to the complainant, on dishonour of the cheque, a formal notice was served on the accused demanding the repayment of the amount covered by the dishonoured cheque, but no payment was made and hence the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, the complainant was examined as PW1 and he produced Exts.P1 to P5. No evidence either oral or documentary was produced from the side of the defence. The trial court, after having considered the entire evidence on record, finally found that the prosecution has not been able to establish its case beyond reasonable doubt and accordingly, the accused was found not guilty for the offence under Section 138 of the N.I.Act and consequently, he was acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

(3.) THE learned counsel for the appellant vehemently submitted that the trial court went wrong in comparing the signature of the accused contained in Ext.P1 cheque with other documents and holding that the complainant has not succeeded in proving the signature in Ext.P1 cheque with that of the accused. According to the learned counsel, it is the burden of the accused to prove that the signature contained in the cheque is not his signature and the accused has not taken any effective step in this regard. In support of the above submission, the learned counsel placed reliance upon the decision in Ajith Kumar v. Rejin Kumar and another [2009(3) KHC 221) and submitted that no burden is cast on the complainant to prove that the signature appearing on the cheque is that of the accused and it is for the accused to establish his defence that the cheque was not signed by him.