IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 Crl.L.P..No. 473 of 2011() -------------------------- ST.123/2009 of J.M.F.C - II, CHENGANACHERRY .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ SANTHAMMA P.K., AGED 40 YEARS, D/O.KUTTAPPANACHARI, PUTHUPPARAMBU HOUSE, PERUMPANACHY P.O., THENGANA, CHANGANACHERRY. BY ADV. SRI.RAJESH THOMAS SRI.A.M.NASEER RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. JOSEPH S/O.CHACKO, KORATHARA HOUSE, KURISUMMOODU P.O., CHANGANACHERRY, PIN 686104. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.L.P.NO.473 OF 2011 2 PETITIONERS EXHIBITS: ANNEXURE-A1 - TRUE COPY OF THE JUDGMENT 19.02.2011 IN S.T.NO.123/2009 PASSED BY THE FIRST CLASS JUDICIAL MAGISTRATE-II, CHANGANACHERY ANNEXURE-A2 - TRUE COPY OF THE PROOF AFFIDAVIT OF THE COMPLAINANT IN S.T.NO.123 OF 2009 ANNEXURE-A3 - TRUE COPY OF THE CHEQUE ISSUED BY THE 1ST RESPONDENT DATED 15.10.2007 RESPONDENTS EXHIBITS: - NIL //TRUE COPY// PA TO JUDGE V.K.MOHANAN, J ------------------------------- Crl.L.P.No.473 of 2011 ------------------------------------ Dated this the 18th day of August, 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. The case of the complainant is that the accused borrowed a sum of Rs.95,000/- from her and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 15.10.2010 for an amount of Rs.95,000/- and the said cheque when presented for encashment dishonoured as there was no sufficient fund in the account of the accused and cheque amount was not repaid in spite of a formal demand and hence the accused has committed the offence punishable u/s.138 of NI Act. With the above allegation and by filing a complaint, the complainant approached initially the Judicial First Class Magistrate Court-I, Changanacherry, wherein cognizance was taken for the said offence and instituted ST.No.88/2008. Subsequently, the case was transferred to the court of Judicial Crl.L.P.No.473 of 2011 2 First Class Magistrate-II, Changanacherry, wherein the case is renumbered as ST.No.123/2009. During the trial of the case, the complainant herself was examined as PW1 and one more witness is examined from the side of the complainant as PW2. Beside the above, Exts.P1 to P6 documents were produced. No evidence either oral or documentary produced from the side of the defence. The trial court by the judgment sought to be impugned has found that the accused has established a probable case that the real transaction was between the accused and PW2 and Ext.P1 cheque was issued to PW2. In the light of the above finding, the trial court has further found that the complainant has failed to establish that Ext.P1 cheque was issued by the accused to the complainant and the same was for a legally enforcible debt. Consequent to the above findings, the trial court has found that the accused is not guilty u/s.138 of the NI Act and thus, he is acquitted u/s.255(1) of Cr.P.C. It is Beside the above order of acquittal sought to be challenged by filing an appeal for which the leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri.A.M.Nazeer, learned counsel appearing for the petitioner and I have perused the judgment of the learned Crl.L.P.No.473 of 2011 3 Magistrate. 4. Going by the judgment of the trial court it can be seen that though PWs.1 and 2 were examined, according to the learned Magistrate, the complainant has miserably failed to show that there was any a transaction between herself and accused and the cheque in question after its due execution was issued by the accused to PW1. Because of the infirmities and discrepancies contained in the evidence of PW1 and the absence of any evidence to show the financial soundness of PW1, to part with such a huge amount, the trial court opted to accept the defence version and thereby held that the presumption, which is otherwise available u/s.139 of the NI Act, is rebutted by the accused and following such observation and finding, the learned Magistrate acquitted the accused. 5. The learned counsel for the petitioner vehemently submitted that, the accused has admitted the signature in Ext.P1 cheque and PW1 during her examination categorically deposed regarding the transaction and therefore, the trial court ought to have held that the complainant has succeeded in establishing the case against the accused. It is also pointed out that the counsel for the accused the trial court has preferred an affidavit and Crl.L.P.No.473 of 2011 4 according to the learned counsel, in the light of the Apex Court in (2010(1) KLT 321 (SC)) Mandvi Co-Op. Bank Ltd. v Nimesh B. Thakore, the said affidavit cannot be acted upon. Thus, according to the learned counsel no evidence is adduced by the defence to probablise the case of the accused and therefore, according to the learned counsel, the trial court is wrong in its finding that the accused has rebutted the presumption. In the light of the findings of the trial court on the basis of the materials and evidence referred in the judgment, and in view of the argument advanced by the learned counsel for the petitioner the point to be considered is whether the petitioner has succeeded in making out of a case so as to grant special leave of this court u/s.378(4) of Cr.P.C. The specific case of the complainant is that the accused borrowed 95,000/- rupees from her and towards the discharge of the said liability the accused issued Ext.P1 cheque. Whereas the case put forwarded by the accused is that there was no transaction between himself and the complainant and there was transaction between the accused and PW2, who is the employer of PW1-the complainant and in connected with that transaction the accused gave signed blank cheques to PW2 and Ext.P1 cheque is one among such Crl.L.P.No.473 of 2011 5 blank cheque leaves misused for the filing of the present complaint. As I in indicated earlier among the two versions, the trial court opted to accept the version given by the defence. In order to accept the defence version, the learned Magistrate has enumerated several reasons. When PW1 was examined during the cross examination it is brought on record that PW1 has no direct knowledge as to who filled up Ext.P1 cheque. In the complaint as well as in the affidavit the exact date of availing of loan is not mentioned. So also regarding the execution of the cheque there is no specific averments or allegation. The learned counsel for the petitioner read over to me, the affidavit filed by the complainant. But the complainant in her affidavit has simply that the accused executed and issued the cheque and nothing more. But during cross examination, PW1 has no consistent stand regarding the execution and issuance of the cheque. In paragraph 6 of the judgment, the learned Magistrate has found that PW1 would testify that the accused put his signature alone in Ext.P1 cheque before her. She further testified that her name was written on the cheque by the accused himself. The trial court has also found that PW1 would testify that it seemed to her that the cheque was written in the handwriting of the accused. Crl.L.P.No.473 of 2011 6 On the basis of above infirmities, the trial court has found that PW1 was no consistent case as to the person who wrote Ext.P1 cheque. According to me, the above infirmities or lack of confidence of PW1, has to be examined in the back drop of the defence advanced by the accused. It is an admitted fact that PW1 is an employee of PW2, who is a real estate business man with whom accused has transaction. According to the accused the cheque in question is one among the cheque leaves entrusted with PW2 connected with the real estate business. The evidence of PW1 about the execution of the cheque probablise the version of the accused. It is to be further noted that as correctly observed by the learned Magistrate, PW1 is an employee of PW2 and her monthly salary is only Rs.3,000/-. PW1 has also stated that she has no bank balance. PW1 never stated about her source to part with such huge amount. But it is now on record on the basis of the evidence of PW2, who says that the amount was raised by PW1 by selling property. This is a case set up by PW2 and PW1 has no such claim. During cross examination of PW2, he is constrained depose before the court that he did not aware of the date of the sale of property, the name of purchaser of property, the nature of property and who is the real owner of Crl.L.P.No.473 of 2011 7 property which allegedly sold by PW1. On a consideration of the evidence and materials on record, it can be seen that PW2 is more interested than PW1 and to have a decision against the accused. Thus, from the evidence available on record, the accused has succeeded in showing that PW1 has no sufficient financial source to part with such amount as claimed by PW1 in the case. The absence of any evidence to show the source of PW1 and the infirmities and discrepancies in her evidence regarding the execution of Ext.P1 cheque, unerringly justify the conclusion of the learned Magistrate that the accused has succeeded in making out a probable case. 6. t is true, that the defence did not adduce evidence and the accused never mounted to the box. In Dhattatray's case the Apex Court has held that to make out a probable case the accused need not mount to the box, but he can set up such plea or establish such case by making use of materials and evidence on record and the attendant circumstances. In the light of the evidence and materials referred to by the learned Magistrate and in the light of the above discussion, it can be safely concluded that defence had succeeded in making out a probable case by which the accused has rebut the presumption which Crl.L.P.No.473 of 2011 8 otherwise available in favour of the complainant and therefore, the contention advanced by the learned counsel that the defence has not adduced any evidence is not sustainable. 7. In the light of the above facts and circumstances and the discussion, I am of the view that even if an appeal is entertained, there is no scope for any interference with the findings of the court below and as such the petitioner has miserably failed to make out any compelling or substantial reasons to interfere with the order of acquittal so as to disturb the double presumption and there is no scope to set aside the order of acquittal. Therefore, according to me, the petitioner failed to make out a case to grant special leave u/s.378(4) of Cr.P.C. In the result, there is no merit in this petition and accordingly, the special leave sought u/s.378(4) of Cr.P.C is declined, and the petition is dismissed. V.K.MOHANAN, JUDGE pm/