C R SANAL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant was the complainant and the second respondent the accused in CC No. 757 of 2009 on the file of the Judicial First Class Magistrate Court-IV, Ernakulam. The prosecution of the latter was under Section 138 of the Negotiable Instruments Act. The allegation in the complaint was that to discharge her liability to the appellant the second respondent issued him Ext.P1 cheque for Rs. 55,000/-; but on presentation it was returned dishonoured with the endorsement, "account closed"; and in spite of demand by notice the second respondent did not pay the amount. The learned magistrate found that the appellant's case is improbable and accordingly, he acquitted the second respondent. The order of acquittal is challenged in this appeal.

(2.) Heard the learned counsel for the appellant and the second respondent.

(3.) I shall first examine whether the appellant has proved execution of Ext.P1 cheque by the second respondent. In the proof affidavit filed by the appellant, who was examined as PW1, there is not even a whisper that he saw the second respondent execute the cheque. In the cross-examination his case was that the second respondent brought to him a written up and signed cheque. It means that he is unable to prove execution of the cheque by his evidence. So, his evidence does not prove execution of Ext.P1 cheque by the second respondent. The learned counsel submits that the defence version alone is sufficient to prove execution of the cheque by the second respondent. The suggestion made in the cross-examination of PW1 is that in 1995 the husband of the second respondent had borrowed Rs. 15,000/- from the appellant and as a security for repayment of the amount, he handed over to the appellant two signed blank cheque leaves of the second respondent. It is a well settled principle that an admission should be read as a whole. Even if the second respondent can be pinned down to the suggestion made in the cross examination, it cannot be said that it contains an admission of execution of the cheque. What is admitted is that Ext.P1 bears the signature of the second respondent, but, according to her, it was not a cheque, but a signed cheque leaf her husband handed over to the appellant. So, it cannot be said that the second respondent has admitted execution of the cheque. In other words, there is a total lack of evidence to prove execution of Ext.P1 cheque by the second respondent