IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 Crl.L.P..No. 1139 of 2010() --------------------------- CC.218/2008 of JMFC-V, (SPL.COURT-MARKLIST CASES), THIRUVANANTHAPURAM ................................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M/S.SREE GOKULAM CHIT AND FINANCE CO.(P) LTD.,REGD.OFFICE AT SREE GOKULAM TOWERS,66-ARCOT ROAD,KODAMBAKKAM,CHENNAI,REP.BY IT'S MG.DIRECTOR, A.M.GOPALAN THROUGH HIS P/H ANAND.B.,LEGAL ASST. SREE GOKULAM CHIT&FINANCE CO.PVT.LTD,NAMBILIKKARAM BLDG.,MAIN RD.,BALARAMAPURAM,THIRUVANANTHAPURAM. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. ABDUL HASSAN, S/O.MEERAN PILLAI, K.V.HOUSE, VAZHIMUKKU, BALARAMAPURAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.RAJESH P.NAIR FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No.1139 of 2010 ----------------------------------------------- Dated 2nd December, 2010. O R D E R This petition is filed for granting special leave to file appeal against an order of acquittal. 2. The petitioner filed a complaint before the Magistrate Court against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act, on the allegation that the accused/first respondent was a subscriber in two chitties with the stake of Rs.3,00,000/- each in favour of the complainant, which is a company dealing in chitty transactions. After receiving the prize money, accused defaulted payment. Towards discharge of the defaulted payment, he issued a cheque for Rs.4,36,000/- drawn on 24.12.2007 from the account maintained by him in State Bank of Travancore. The complainant presented the cheque for collection, but it was returned for want of sufficient funds. Therefore, a lawyer notice was issued demanding payment. But, the notice was returned with the remarks “addressee unclaimed” and the amount was not paid. Hence, the complaint. Crl. L.P. No.1139/10 2 3. To prove the prosecution case, PW1 was examined and Exts.P1 to P8 were marked. The accused examined DW1 and marked Exts.D1 and D2 on his side. According to the accused, he had subscribed for chitty and he also received Rs.6,00,000/- in total, out of the two chitty deals. He had to pay future subscriptions. He paid the entire subscriptions as per Exts.D1 and D2 chitty pass books. In spite of the same, complainant filed the complaint, misusing the blank cheque, which was handed over as security, while receiving the money. 4. Learned counsel for petitioner argued that accused was acquitted mainly for the reason that the complainant failed to produce documents, evidencing the transaction. The complainant is prepared to produce the documents and an opportunity may be given to establish the case, it is submitted. It is further pointed out that trial court found that the amount, which is in balance to be paid is lesser than the amount shown in the cheque and hence, the complainant's case is improbable. According to petitioner, this Crl. L.P. No.1139/10 3 finding is not correct, since accused is liable to pay interest also. Adding up the interest to the amount due, it will be the amount, which is covered by the cheque and in such circumstances, the findings of the court below are wrong and unsustainable, it is submitted. 5. Learned counsel for first respondent argued that the trial court has considered the evidence and facts and circumstances of this case in detail in paragraphs 11 to 14 and acquitted the accused giving valid reasons. The complainant was given sufficient opportunity to produce documents. Though several adjournments were given for this purpose, the complainant failed to produce the documents and hence, there is no justification in giving more opportunity, it is submitted. 6. It is also argued by learned counsel for accused that the pass books issued by the company, which are marked as Exts.D1 and D2 and the admissions made by PW1, who was examined on behalf of the company would clearly show that the claim made by the complainant that an amount of Rs.4,36,000/- is still due to the complainant is absolutely false. The accused Crl. L.P. No.1139/10 4 paid the entire amount which is due to the complainant but a complaint is filed against him misusing a blank cheque, which is handed over as security, while receiving the money due to the accused, in the two chitty transactions, it is submitted. 7. On hearing both sides and on going through the order under challenge, I find that the trial court has tested the evidence and materials available on record against probability and on proper appreciation of evidence, it was found that complainant failed to substantiate the transaction. The court also found improbability in the case set up by the complainant. Regarding the statement of accounts and the transaction, trial court observed as follows :- “Here comes the importance of statement of accounts maintained by complainant. During cross examination PW1 do admit that company is properly maintaining accounts in all deals including the transaction with complainant. He do promised in cross examination that the complainant will produce statement of accounts in the course of proceedings. But curiously statement of accounts is absent from evidence, when there is genuine doubt about the quantum of liability in view of the accounts made mentioned on Exts.D1 and D2 documents.” 8. I do not find any reason to interfere with the Crl. L.P. No.1139/10 5 above findings. Though the petitioner would seek for one more opportunity to produce the document, on the facts and circumstances of this case. I do not think such an opportunity need be granted. It is relevant to note that PW1 has admitted in cross examination that the company is maintaining accounts for the transaction with the accused, but such documents were not produced. 9. It is also relevant to note that the trial court found that the amount covered by the cheque is Rs.4,36,000/-. But, it has come out from the evidence, particularly the details in Exts.D1 and D2 pass books, that some amounts were already paid and there was remittance of Rs.4,20,310/- from the accused. Calculating the payment made and the payment due, the trial court observed that the accused would not have handed over a cheque covering an amount of Rs.4,36,000/-. The relevant observations are in paragraph 14. “Really the sum mentioned on Ext.P3 cheque is equivalent to double the actual liability of accused towards complainant. Needless to say that no man of common sense and prudence will hand over cheque inviting exorbitant liability towards another with whom his transaction was strained. Even if Crl. L.P. No.1139/10 6 transaction is not strained, no man with reasonable sense will invite unbearable debt in place of his actual liability. Therefore, it is quite evident that there is something rotten behind this contentions of complainant. Really speaking their exist element of improbability rather to say impossibility in the contention of complainant that accused has issued cheque for huge sum, whereas liability is much meagre.” 10. The trial court further proceeded on to find that PW1 failed even in reciting the date of issuance of cheque, Ext.P3. It is also found that there is no evidence to prove that a demand was made to hand over a cheque towards liability. All these facts generated doubts about execution of the cheque, and the trial court entered finding that prosecution failed to prove its case. The observations in paragraph 12 are relevant. Those are extracted as follows : “As admitted by both sides, the character of transaction between complainant and accused are two chitty deals with stake of Rs.3,00,000/- each. It is also admitted that after remitting certain sum towards subscriptions accused has obtained prize money in both chitties on condition that he will pay future subscriptions promptly. According to accused he had discharged entire subscriptions, but complainant by ignoring to adjust the same against liability has ignited this prosecution by materially altering a blank Crl. L.P. No.1139/10 7 signed cheque given at the time of securing prize money. Whereas PW1 has deposed that accused himself has came forward and issued Ext.P3 instrument against existing liability. But in what situation the defaulter/accused has came to the office of complainant and issued Ext.P3 cheque is not came out in evidence. Moreover during cross examination PW1 do admit that there is no scrap of paper available with complainant to see that accused was demanded to hand over Ext.P3 cheque towards liability, though he claims that a notice was issued for the same. Above all PW1 has failed even in reciting the date of issuance of Ext.P3 cheque by accused. So all these really generates doubt about issuance of cheque as claimed by complainant.” 11. On hearing both sides and on going through impugned order, I do not find any reason to interfere with the findings of the trial court, which are only acceptable. I do not find any reason to grant leave. Petition is dismissed. K.HEMA, JUDGE. tgs