Lillykutty vs Lawrance on 29 August, 2003
It was further stated that Kunhimanu
mentioned above is a close relative of PW1 and so
Kunhimanu has handed-over the cheque leaf to PW1 to file
this complaint. It is true that according to the accused, he
was still liable to pay Rs.5,000/- to Kunhimanu mentioned
above. But that will not in any way come to the rescue of
the complainant to prove his case. The argument advanced
Crl.Appeal No. 1387 OF 2004 5
by the learned counsel for the complainant that simply
because payee's name and the amount shown in the cheque
is not in the hand writing of the drawer of the cheque that is
no reason to hold that it was not validly issued or that the
cheque was not executed at all, for which he has relied upon
the decision in Lillykutty V. Lawrance 2003 (3) KLT 721.
Here, the oral evidence given by PW1 itself is found to be
not fully true. His case based on the alleged receipt of the
cheque leaf stands negated by the evidence given by DW.1,
the accused. The circumstances projected by the defence is
equally probable, if not more. The evidence adduced by the
complainant and the accused is equally poised. The mere
handing over of the signed blank cheque leaf will not rouse
any presumption that it was executed as mandated by law.
If only there is evidence of due execution of the cheque, the
presumption u/s 139 of the Act can be drawn. That stage
has not reached in this case.