IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 Crl.L.P..No. 752 of 2011() -------------------------- CC.9/2009 of J.M.F.C.-II, MUVATTUPZHA .................... PETITIONER/COMPLAINANT: ------------------------------------------- RAJESH.P.C., PALICKAMADATHIL HOUSE, KUTHUKUZHY, KOTHAMANGALAM. BY ADV. SRI.T.RAJESH RESPONDENTS: ACCUSED: ----------------------- 1. STATE OF KERALA REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. RAJU CHERIYAN, BLOCK NO.6451, SARADHA BHAVAN, BALAGRAM P.O., THOOKAPALAM, IDUKKI DISTRICT. R2 BY ADV. M/S GEO PAUL , SANU MATHEW C.R.PRAMOD, S.ASHOK KUMAR, NOEL JOSEPH M.B.SANDEEP K.V.REJANISH THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 752 of 2011 ---------------------------------------- Dated the 23rd day of August, 2011 ORDER The complainant, in a prosecution for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'), is the petitioner herein who seeks special leave under section 378(4) of the Criminal Procedure Code (for short 'the 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 under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused borrowed a sum of Rs.50,000/- on 22.6.2006 with an undertaking that the said amount will be repaid within one month. According to the complainant, when he demanded the accused for the repayment, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of the statutory notice served on him. Thus according to the complainant, the accused has committed the offence punishable under section CRL.L.P. No.752/11 2 138 of the NI Act and with the said allegation, by filing a complaint, the complainant approached the court of Judicial First Class Magistrate-II, Muvattupuzha, based upon which cognizance was taken for the offence under section 138 of the NI Act and instituted C.C.No.9 of 2009. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents from the side of the complainant. From the side of the defence, DW1 was examined but no document was produced. Ext.X1 is marked as Court exhibits. The trial court after considering the evidence and materials found that it cannot be concluded that Ext.P1 cheque was issued by the accused in discharge of liability towards the complainant and accordingly, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which the petitioner seeks leave of this Court under section 378(4) Cr.P.C. 3. I have heard Sri.TRajesh, the learned counsel appearing for the petitioner and Sri Geo Paul, the learned counsel appearing for the 2nd respondent. I have also perused the judgment of the trial court. CRL.L.P. No.752/11 3 4. The specific case of the complainant is to the effect that the accused borrowed the amount from him and towards the discharge of the said liability, issued Ext.P1 cheque. But according the the defence, there is no transaction between the accused and the complainant. According to the defence, the cheque in question is one which entrusted with the Vikas Chitty company connected with a hire purchase agreement and the said cheque is misused by the complainant to file the present case. The trial court has found that the complainant has miserably failed to establish his claim with respect to the transaction. In order to come into the above conclusion, the trial court closely scrutinized the evidence of PW1, the complainant. According to the trial court, though the complainant has claimed that the transaction was reduced into writing to form an agreement, that agreement was not produced and no independent witness was also produced to prove the transaction though the complainant claimed that the transaction was witnessed by another person. Counsel for the petitioner submitted that the finding of the learned Magistrate that, the complainant had no pleading that the person who witnessed the transaction was not CRL.L.P. No.752/11 4 the Manager of the financial firm, has no bearing in the present case. According to the learned counsel , the evidence of DW1 has no relevance in the present case and the court was misled by the evidence of DW1. Thus according to the learned counsel, the findings of the court below and the order of acquittal has to be set aside. 5. In the light of the claim of the complainant and the defence and the materials and evidence on record and particularly 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 under section 255(1) of Cr.P.C. Having regard to the facts and circumstances involved in the case, I am of the view that the learned Magistrate is correct in her finding that there is no evidence to conclude that Ext.P1 cheque was issued in discharge of a liability due to the complainant. Besides the interested version of PW1-the complainant himself, there is no independent evidence to prove the transaction claimed by the complainant. But during the cross examination of PW1, the defence has succeeded in eliciting CRL.L.P. No.752/11 5 certain facts and those facts are consistent with the case set up by the defence. The trial court has found that during the cross examination of PW1 he had disclosed that he arranged finance for the purchase of an autorickshaw. He had also admitted that he was an employee of Viswas Enterprises at Muvattupuzha. He had also deposed that he had arranged finance to the accused in a room adjoining to the building of Viswas enterprises and at that time one of his friends, namely, one Muraleedharan from Kuthukuzhai, was with him. PW1 has also claimed that an agreement was executed between them at the time of borrowing the amount. The trial court has found that the complainant has neither produced the above said agreement nor examined the person who witnessed the transaction. The trial court has also found that varying from the statement given in the affidavit, during cross examination, he had deposed that the accused never pressurised him to present the cheque at Muvattupuzha. Whereas in the affidavit, he has stated that the cheque was presented at Muvattupuzha under the pressure of the accused. Though PW1 has claimed that one Murleedharan from Kuthukuzhai was present when the CRL.L.P. No.752/11 6 transaction was taken place, he never examined the said Muraleedharan. DW1 is the Managing Director of Viswas Enterprises and when she was examined, she deposed that one Raju Cherian had hire purchase transaction with respect to the vehicle KL.6-B-8813 and the said transaction was closed. She had deposed that the affairs of the firm was looking after by the Manager and the Manager is one Muraleedharan from Kuthukuzhi. She has also deposed that the complainant was not an employee in her firm and the complainant is not known to her. But at the same time it is relevant to note that the complainant has admitted that he was an employee of Viswas Enterprises. Thus, the trial court has found that the Muraleedharan is the person who claimed to have present, according to PW1, at the time of the transaction, and he was the Manager of the firm of DW1 as the Manager. It is also evident from the deposition of DW1 that the transaction between Raju Cherian, who is none other than the accused herein, is cosed. In the light of the above facts and circumstances and the evidence which are referred to by the learned Magistrate in the judgment sought to be impugned, I am of the view that the CRL.L.P. No.752/11 7 learned Magistrate is fully justified in her finding and acquitting the accused. Therefore, according to me, even if an appeal is entertained, there is no scope for interference with the said finding and to disturb the double presumption of innocence in favour of the accused as per the order of acquittal and hence, the petitioner is not entitled to get leave so as to file appeal against the above judgment of the court below. Hence, there is no merit in the Crl.L.P and accordingly declining the special leave under section 378(4) of Cr.P.C, this petition is dismissed. V.K.MOHANAN, JUDGE kvm/- CRL.L.P. No.752/11 8