AI Drafter 
TaxTMI 
TaxTMI 
2021 (4) TMI 657
X X X X Extracts X X X X
X X X X Extracts X X X X
....kkara, in C.C. No. 56/2010. The appellant is the complainant in the complaint. He had prosecuted the first respondent/accused alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. 2. According to the complainant, on 09.03.2006 the first respondent had borrowed an amount of Rs. 70,000/- from the complainant for the educational purpose of her son. At that time, she had agreed to repay the amount after a period of 3½ years. On 09.04.2009 the accused/first respondent issued the cheque bearing No. 8748 dated 09.04.2009 for Rs. 70,000/- drawn on the Thiruvalla branch of the Central Bank of India. The complainant presented the cheque for encashment through the Mavelikkara bra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p paper to one Sudeesh Kumar of Vazhuvadi, in consideration of some other transaction. In the said agreement, her son was not an attestor. She had put only one signature on the stamp paper. The other signatures were not put by her. All the documents were subsequently fabricated for the purpose of this case at the instance of the said Sudeesh Kumar. The appellant is the agent of the said Sudeesh Kumar. Thereafter, the accused/first respondent gave evidence as DW1 and Ext. D1 is marked on her side. After hearing counsel on both sides, by the impugned judgment, the learned Magistrate found the first respondent/accused not guilty of the offence punishable under Section 138 of the Act and acquitted her under Section 255(1) of the Cr.P.C. Challen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n her, the appellant should have been granted an order in his favour and the first respondent should have been convicted. On the other hand, according to the learned counsel for the first respondent, the appellant could not give a genuine, believable story before the court. Ext. P7 is not a genuine document. If such a document was executed as alleged by the appellant, on furnishing the Ext. P1 cheque in 2009, it would have been taken back, but that has not been done. It is also not believable that an autorickshaw driver, the appellant could arrange and lend such a huge amount of Rs. 70,000/- that too for a long period of 3½ years without insisting payment of any interest. The learned counsel for the first respondent also stated that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. He has dual role. According to him, he had also witnessed the passing of Ext. P1 cheque, in the residence of the appellant on 09.04.2009. According to him, the cheque was brought prepared and signed in the presence of himself and the appellant. 8. The learned Magistrate considered the Exts. P1 and P7 documents and after evaluating rival contentions and materials, concluded that the version of the appellant is not probable and that of the first respondent is more probable and, on that premise, point No. 1 was found against the appellant/complainant; ultimately that resulted in entering a finding against the complainant. After revisiting evidence, I am also of the view that the appellant could not make out a foolproof, believable and tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ently bear different hand writings; the name of the drawee, the amount, date etc., are in different ink. Not only that, the ink is seen spread. On the other hand, the signature of the drawer is in different ink. But that itself is not sufficient to draw adverse inference about the genuineness of the document. It is true that the first respondent has admitted her signature on the instrument. But that alone is not sufficient to assume genuineness of the document or to draw presumptions under Sections 118 and 139 of the Act in favour of the complainant. If only the execution of the document is admitted or proved, the complainant will be entitled to draw the statutory presumptions in his favour. Here, merely for admitting the signature on the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at is found against the name of the first respondent, is in different ink. If the document was signed by the first respondent in a single stretch, two pens might not have been used for the purpose. Similarly, the size of the letters, the attempt of the scribe to fill the gap and the different fonts used for the purpose etc., give an insight that it is not a genuine document executed by the first respondent in the manner alleged by the appellant. I do not think that the decisions cited by the learned counsel for the first respondent has any application to the facts of the case. In fact, no blame can be attached against Ext. P4 notice. If the Ext. P1 cheque is taken as genuine, no doubt, the Ext. P4 will serve the purpose. But there are reaso....