IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.L.P..No. 341 of 2011() -------------------------- CC.103/2009 of J.M.F.C.-II(MOBILE),ALAPPUZHA .................... PETITIONER/COMPLAINANT ------------------------------------------ M/S.SREE GOKULAM CHIT & FINANCE CO.PVT.LTD. REPRESENTED BY ITS AUTHORIZED AGENT T.R.KRISHNAN KUNJU, S/O.THYAGARAJA PANICKER, AGED 38 YEARS, LEGAL CLERK, KOLLAM DIVISION, COMMERCIAL SHOPPING COMPLEX, BISHOP JEROME NAGAR, CHINNAKKADA, KOLLAM. BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. REJANI.P., D/O.REMANAN, KOOTTIYIL KAYAL VARAM, KANJIVELY P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No. 341 of 2011 ----------------------------------------------- Dated this 24th May, 2011 ORDER This petition is filed for granting leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. According to the complainant, accused issued a cheque for Rs.92,625/- to the complainant towards repayment of the instalments of chitty. On presentation, the cheque was dishonoured for insufficiency of fund. Notice was issued demanding payment. Since the amount was not paid, he filed the complaint. 3. PWs1 and 2 were examined Ext.P1 to P10 were marked on the side of prosecution. Accused marked Exts.D1 and D2. On a consideration of the evidence in detail, the trial court entered the following finding: It is evident from the fact that the prosecution witnesses are not having a consistent version regarding the author of the entries in the cheque. PW1 stated that the cheque was written by the accused herself. At the same stretch he would depose that he could not deny the fact that the cheque might have been written by the staff of the complainant company. On the other hand, PW2 [Crl.L.P.341/2011] 2 stated that the cheque was brought written and the accused only signed in his presence. When the complainant failed to prove the exact liability of the accused as on the date shown in the cheque, execution of the same is quite suspicious especially in view of the mysterious nature of evidence given by the complainant in respect of incorporation of various entires in the cheque. Evidence given by the prosecution witnesses cannot be believed in the absence of independent cogent evidence. In case this type of evidence is accepted to believe the prosecution case, it may encourage the practise of claiming exorbitant amounts by making false entries in cheques obtained in blank by private non-banking companies like the complainant.” 4. On hearing petitioner's counsel and on going through the impugned order, I do not find any reason to interfere with the findings quoted above. There is no reason why the inconsistent version of PWs 1 and 2 should be accepted. In the absence of proof of execution of cheque, offence under Section 138 of N.I. Act will not be attracted. Hence, I am not inclined to grant leave. This petition is dismissed. Sd/- K.HEMA, JUDGE. Krs.