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. 327 of 2011() -------------------------- ST.1526/2009 of J.M.F.C.-II(MOBILE),KOTTAYAM .................... PETITIONER/COMPLAINANT ------------------------------------------ M/S.SHRIRAM TRANSPORT FINANCE CO. LTD., REG. OFF: 123,A.N.STREET,CHENNAI-1,REP. BY ITS NEW BRANCH MANAGER SUMESH S.,32 YEARS,S/O.K.SOMAN PILLAI,SHRIRAM TRANSPORT FINANCE CO. LTD.,GEETHA COMMERCIAL COMPLEX,NEAR Y.M.C.A.,M.C.ROAD, KOTTAYAM. BY ADV. SRI.C.HARIKUMAR SMT.MOLLY KOSHY RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. HARI, S/O.RAGHAVAN, VADAKKEKKAROTT, VAZHAPPALLY, VEROOR P.O., CHANGANASSERY-686104. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ADV. SRI.M.P.MADHAVANKUTTY FOR R1 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. 327 of 2011 ------------------------------------------------- Dated this the 24th May, 2011 ORDER This petition is filed for grant of leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. It is a company. As per the allegations in the complaint, accused issued a cheque for Rs.93000/- towards discharge of the liability in favour of the complainant. The cheque was dishonoured on presentation with the bank and notice was issued demanding payment. But, the payment was not effected and hence the complaint. 3. PW1 was examined and Exts.P1 to P9 were marked on the side of the accused. Accused did not adduce any evidence. The trial court entered a finding that the execution and consideration are disputed and those are not proved by the prosecution. 4. First respondent entered appearance through counsel. Heard both sides. Perused the impugned [Crl.L.P.No.327/2011] 2 order.Learned counsel for the first respondent argued that even the competency of PW1 to represent the complaint is disputed. Petitioner's counsel submitted that a power of attorney is issued in favour of PW1 and it was also marked and therefore his competency is established. The trial court entered the following finding in page no.4 of the impugned order: “The competency of PW1 represented the complainant institution and giving evidence in this case also disputed. It is significant to note that only a copy of the Power of Attorney authorising PW1 to conduct the case produced. PW1 is quite ignorant about the constitution of the company with the director board and the power of attorney issued by any competent person from the director board. Nothing has stated in the complaint about the issuance of the power of attorney in favour of PW1 also. In order to show the transaction in between the parties as alleged by the complainant – vehicular loan, nothing has produced. The only documents produced relating to the transaction is Ext.P4 statement of account from which it can arrive at a conclusion that the accused is indebted to the amount shown in Ext.P3 on usual course. From Ext.P4 it cannot arrive at a conclusion that the accused is indebted to the amount shown in Ext.P3. No authority produced for arriving at the consideration as per Ext.P4. Ext.P4 is not an original document and it is only a computer print out. It cannot rely upon for arriving at a conclusion that the accused is indebted to the amount as per Ext.P3.” [Crl.L.P.No.327/2011] 3 5. On hearing both sides, I do not find any reason to interfere with the above findings. Those findings do not appear to be unreasonable or perverse. Those cannot be said to be inconsistent with the evidence on record. It is clear from the portion extracted above that no documents are produced to show that there was any transaction between the parties as alleged in the complaint. Though it is submitted by petitioner's counsel that Ext.P4 is a copy of the computer statement certified by PW1, the admissibility of such document is disputed. It is argued by respondent's counsel that Ext.P4 is not proved in accordance with the provisions contained in the Evidence Act. Ext.P4 is not public document. Petitioner's counsel was not able to substantiate under what provision of law Ext.P4 is admissible in evidence. 6. Learned counsel for petitioner argued that the findings of the trial court that no communication was issued by the complainant regarding the date to the accused is not correct since a lawyer notice was issued and it was also marked. But, in the light of the crucial finding relating to the transaction, even if the impugned finding on communication is reversed the order of [Crl.L.P.No.327/2011] 4 acquittal cannot be interfered with. The trial court also held that execution of the cheque is not proved by the complainant and I do not think that the said finding is perverse. There is no ground to grant leave . Petition is dismissed. Sd/- K. HEMA, JUDGE. Krs.