IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 30TH JANUARY, 2009 / 10TH MAGHA, 1930 Crl.L.P..No. 12 of 2009 (CC.6/2005 of Judicial First Class Magistrate Court-I, Kollam) .................. PETITIONER/COMPLAINANT: ----------------------------------------- V. REMANAN, S/O. VASU, VARAYIL VEEDU, MURUNTHAL.B, PERINADU, KOLLAM. BY ADV. SRI.PRATHEESH.P SMT.T.M.RESHMI RESPONDENTS/ACCUSED AND STATE: ------------------------------------------------------- 1. RAMACHANDRAN, KALAKKARAYIL VEEDU, KOTTAKKAKAM, PERINADU, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.L.P.No. 12 of 2009 --------------------------------------------- Dated this the 30th day of January, 2009 O R D E R Having failed in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'), the complainant preferred this petition seeking leave to file appeal against the order passed by the trial court under Section 255(1) of Cr.P.C. acquitting the accused for the offence under Section 138 of the N.I.Act. 2. The case of the complainant is that the accused had drawn a cheque dated 14.10.2004 for Rs.3,00,000/- in favour of the complainant and on presentation of the same for encashment, it was dishonoured for the reason that the 'funds insufficient'. On receipt of the dishonour memo, the complainant caused to send a lawyer notice to the accused intimating him regarding the dishonour of the cheque and also demanding for the payment of the amount. As the accused has not paid the amount, the complainant approached the court below and the court took cognizance upon the sworn statement and the complaint preferred by him. When the accused appeared, particulars were read over and explained Crl.L.P.No. 12 of 2009 :-2-: to him and he pleaded not guilty. Consequently, the trial was further proceeded during which the complainant was examined as PW1 and Exts.P1 to P5 were produced. Finally, the court below found that the complainant had failed to prove beyond reasonable doubt that the accused had issued Ext.P1 cheque towards the repayment of any legally enforceable debt or other liability and accordingly, the accused is found not guilty and he is acquitted. It is the above finding and order of acquittal sought to be challenged in appeal for which leave sought in this petition. 3. I have heard learned counsel appearing for the petitioner. Learned counsel submits that the accused did not dispute the issuance of cheque including the signature contained in Ext.P1. It is also pointed out that though a statutory notice was sent, the accused did not care to send reply. Thus, according to the learned counsel, as there is no denial of execution and issuance of cheque, the finding arrived on by the court below is incorrect and liable to be set aside on further hearing of the appeal. The main reason for the finding arrived at against the complainant and in favour of the accused is that either in the affidavit or in the complaint, there is no pleading that Ext.P1 cheque was issued towards the repayment of any debt or other Crl.L.P.No. 12 of 2009 :-3-: liability. The trial court further found that what contained in the complaint and in the affidavit is only that accused had drawn a cheque for Rs.3 lakhs in favour of the complainant and there is no claim that Ext.P1 was issued towards the discharge of any legally enforceable debt or other liability. After discussing the essential ingredients of Section 138 of the N.I.Act, the trial court found that the complainant is not having a specific case that Ext.P1 is issued towards the discharge of a legally enforceable debt or other liability and Section 138 of the N.I.Act is not at all attracted. 4. It is true that the accused has no contention that Ext.P1 cheque did not pertain to his account and the signature in Ext.P1 is not put by him. According to the accused, he had issued two signed blank cheques to one Sathyseelan when he received Rs.50,000/- from him and those cheques were not returned though that transaction was settled and four months interest alone was remaining to be paid and one of those two cheques is misused in the present case. Even though the court below had not gone to the question as to whether the accused has substantiated the defence, such question will arise only when the complainant established a prima facie case so as to invoke Crl.L.P.No. 12 of 2009 :-4-: the presumption available under Section 139 of the N.I.Act. In the decision reported in Krishna Janardhan Bhat v. Dattatraya Hegde [2008(1) KLT 425 (SC)], the Apex Court had held that merely because the complainant was holding a cheque, no presumption can be drawn under Section 139 of the N.I.Act that the said cheque was issued to pay off the legally enforceable debt or liability and no presumption can be drawn regarding the existence of a debt or any financial liability. In the present case, absolutely there is no allegation in the complaint to the effect that the cheque in question was issued towards the discharge of any legally enforceable debt. An affidavit filed by the complainant in lieu of chief examination does not contain anything in terms of the above legal requirement. It is on the basis of the above legal ground, the trial court came into a conclusion that the complainant has failed to prove that the cheque in question was issued towards the discharge of a legally enforceable debt so as to attract Section 138 of the N.I.Act. 5. In the light of the above factual scenario, I am of the opinion that there is not even a remote scope for interfering with the order of acquittal passed by the court below even if an appeal is entertained. In the decisions reported in Ghurey Lal v. State Crl.L.P.No. 12 of 2009 :-5-: of U.P. [2008(4) KLT SN 17 (C.No.17) SC] and Batcu Venkateshwarlu and Ors. v. Public Prosecutor High Court of A.P. [2009(1) Supreme 67], the Apex Court had held that unless there are compelling and substantial reasons, the appellate court shall not interfere with the order of acquittal passed by the trial court. Going by the judgment of the trial court and on hearing the counsel for the petitioner, I find no compelling and substantial reasons to interfere with the order of acquittal even if the appeal is entertained. Therefore, the petitioner has miserably failed to make out a case to grant special leave and consequently, the prayer for granting leave is denied. In the result, there is no merit in the petition and the Special Leave Petition is dismissed accordingly. V.K.Mohanan, Judge MBS/ Crl.L.P.No. 12 of 2009 :-6-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T Crl.L.P.No. 12 of 2009 :-7-: DATED: -1-2009