IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 Crl.L.P..No. 665 of 2011() -------------------------- ST.61/2010 of J.M.F.C. - II, KARUNAGAPPALLY .................... (S): COMPLAINANT ------------------------------- K.V.VIJAYAN,KOCHAYYATHU VEEDU, THODIYOOR, KARUNAGAPPALLY,KOLLAM. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. R.ANIL, ASWATHY BHAVAN, THODIYOOR NORTH P.O, KARUNAGAPPALLY, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.665 of 2011 -------------------------------------------- Dated this the 29th day of July, 2011 ORDER The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this Court u/s.378(4) of Cr.P.C. to file an appeal against the order of the trial court by which the learned Magistrate, in his complaint, acquitted the accused u/s.255(1) of Cr.P.C. 2. Heard learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 3. The case of the complainant is that, the complainant and accused are known each other and accordingly, the accused approached the complainant on 5.1.2006 and requested for an amount of Rs.1,85,000/-and according to him, he had agree to pay the same on 12.4.2006. As per the version in the complaint, on 12.1.2006, the accused came to the residence of the complainant and the complainant handed over a sum of Rs.18,500/- to the accused at 7.00 a.m. It is the further case of the complainant is that towards the discharge of the said liability, the accused issued Ext.P1 cheque and when the same was presented for encashment, dishonoured stating that the Crl. L.P.NO.665 of 2011 2 funds insufficient in the account maintained by the accused and according to the complainant, statutory notice was caused send to the accused on 23.5.2006 informing the accused regarding the dishonour of the cheques and demanding of the payment of the amount covered by the cheque in question. But no amount was paid and therefore, the offence u/s. 138 of the NI Act is attracted and on such allegation the complainant approached the Judicial Magistrate of First Class-1, Karunagappalli, based upon which cognizance was taken for the said offence and instituted ST No.61/2010. During the trial DWs.1 to 5 were examined from the side of the prosecution and marked as Ext.P1 to P7 and also marked Ext.X1. No evidence either oral or documentary produced from the side of the defence. The learned Magistrate towards the conclusion of the trial found that the complainant has failed to establish the execution of the cheque in question and also failed to show that the same was executed in discharge of any existing debt or liability and also held that the complainant has miserably failed to prove that proper service of notice. Thus, according to the learned Magistrate, there is no cogent and reliable evidence to prove the case of the complainant. Thus, the accused is acquitted u/s.255(1) of Cr.P.C. Crl. L.P.NO.665 of 2011 3 It is the above finding and the judgment of the trial court sought to be challenged by filing an appeal for which special leave of this court sought u/s.378(4) of Cr.P.C. 4. I have heard Sri. J.Omprakash, learned counsel for the petitioner and I have also perused the judgment of the trial court. 5. The trial court after considering the evidence and materials on record, specifically found that though the complainant has got a case that he had paid an amount of Rs.1,85,000/- to the accused on 12.1.2006, the averment in the complaint is that the accused requested him for a loan for Rs.1,85,000/- and the complainant handed over Rs.18,500/- to the accused on 12.1.2006 and towards the discharge of the said liability, the accused issued Ext.P1 cheque for an amount of Rs.18,500/-. The learned Magistrate has also found that in the list of documents filed along with the complaint, the cheque amount is shown as Rs.18,500/-. The complainant was examined on 4.5.2010 and it is also discernible from the judgment that after completing the examination of PW1, he had filed Crl.M.P.No.563/2010 seeking permission to make necessary correction with the complaint in respect to the amount, handed Crl. L.P.NO.665 of 2011 4 over by him to the accused thereby to correct the figure “Rs.18,500”/- (Rupees Eighteen thousand and five hundred only) as Rs.1,85,000/- (Rupees One lakh eighty five thousand only), but the said petition was dismissed by the court. The Magistrate has also found that though a correction was sought, in the complaint, as indicated above, but in the affidavit also the amount of loan availed by the accused is shown as Rs.18,500/- only. It is also found that in the statutory notice also the due amount is shown as Rs.18,500/-. The learned Magistrate has also found that a statutory notice in terms of the proviso of Section 138 of NI Act also not issued within the time stipulated. It is the further finding of the learned Magistrate that there is no evidence to show that Ext.P1 cheque was drawn by the accused. It is on the basis of the above materials and evidence and the findings the learned Magistrate acquitted the accused u/s.355(1) of Cr.P.C. 6. But the learned counsel for the petitioner, vehemently submitted that on a conjoined reading of the deposition of PW3 and Ext.P7, note book, it can be seen that the amount shown in the complaint as well as in Ext.P6, demand notice, as Rs.85,000/-, instead of Rs.1,85,000/- which was due to a bonafide mistake. Thus, according to the learned counsel, the learned Crl. L.P.NO.665 of 2011 5 Magistrate without proper appreciation of the facts and circumstances and the evidence on record came into the wrong conclusion with regard to the actual amount due to the complainant. It is also the submission of the learned counsel that the court below ought to have found that the signature seen in Ext.P6 and acknowledgment due are that of the accused and the court below ought to have held that statutory notice was served on the accused as contemplated by the proviso of Sn.138 of NI Act. Thus, according to the learned counsel, the findings and the order of acquittal recorded by the trial court is liable to be set aside. 7. I have carefully considered the arguments advanced by the learned counsel for the petitioner and also gone through the judgment of the trial court. 8. In the light of the claim of the complainant and the defence and the materials and evidence on record and particularly in the light of the findings of the court below the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused u/s.255(1) of Cr.P.C. As I indicated earlier, the trial court took cognizance for Crl. L.P.NO.665 of 2011 6 the offence u/s.138 of the NI Act on the basis of the complaint preferred by the complainant wherein the specific case of the complainant is that on the request of the accused he had paid Rs.18,500/- to the accused at about 7.00 a.m on 12.1.2006. In the complaint itself the cheque amount is also shown as 18,500/-. It is true that after the examination of the complainant as PW1, the complainant had moved an application for correction of the amount in the complaint. It is relevant to note that such application was filed after the examination of the complainant as PW1, after his deposition regarding the amount due to him from the accused to the effect that the due amount is Rs.1,85,000/-. The above evidence of PW1 accepted and acted upon and the petition is allowed as such, it will amount to review all proceedings of the learned Magistrate taking cognizance on the basis of the complaint preferred by the complainant. As the correction as sought for has not allowed, the position is that the deposition of PW1, is in a conflict with the averment that contained in the complaint. It is relevant to note that as rightly pointed out by the learned Magistrate the amount due from the accused as per the affidavit filed in lieu of chief examination, in the list of documents produced along with the complaint and in Crl. L.P.NO.665 of 2011 7 Ext.P6 notice is only Rs.18,500/-. So the above inherent defect will certainly go against the complainant. 9. In this juncture, it is pertinent to consider the specific contention advanced by the accused. According to him, no statutory notice was received. The cheque in question was a blank cheque entrusted with the complainant as a security, when one of his friends namely Vijayakumar availed a loan of Rs. 18,500/- from the complainant. It is also relevant to note that the evidence of PW1 is to the effect that it is the accused to who put the entires in Ext.P1 and put his signature therein. But there is no reliable evidence to substantiate the above claim of the complainant. The evidence of PW2 to prove the transaction as claimed by the complainant is not reliable since he is an interested witness. The learned Magistrate after close scrutiny of the evidence on record, it is specifically found that the signature in Ext.X1 and Ext.P6 which are said to be that to accused, are not identical and those signatures are having no similarity with the signature that contained in Ext.P1. So, on the basis of the above facts and evidence and considering the case of the defence, the learned Magistrate has found that complainant has miserably failed to prove the execution of the cheque also. Crl. L.P.NO.665 of 2011 8 10. From the above discussion, I am satisfied that the learned Magistrate is perfectly correct and justified in holding that the complainant has miserably failed to establish the liability due to the complainant and also the execution of the cheque by the accused in favour of the complainant. Under the above circumstances, I am not proposed to go into the merits of the findings of the learned Magistrate regarding the non-ervice of the statutory notice. As far as a prosecution is concerned for the offence u/s. 138 of NI Act, it is the bounden duty of the complainant to prove the execution and issuance of the cheque and also the passing of consideration so as to attract the liability u/s.138 of the NI Act. In the present case, the complainant has miserably failed to establish the above essential ingredients and under the above legal and factual back drop even in case an appeal is entertained, according to me, there is no scope for any interference, with the above findings of the learned Magistrate especially when there is no compelling circumstances to interfere with the order of acquittal recorded by the Magistrate. Thus, according to me, the petitioner has miserably failed to make out a case so as to grant special leave u/s.378(4) of Cr.P.C. In the result, there is no merit in the leave petition, and Crl. L.P.NO.665 of 2011 9 accordingly, special leave is declined and leave petition is dismissed. V.K.MOHANAN, JUDGE. pm/