IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 Crl.L.P..No. 530 of 2011 -------------------------------- (AGAINST THE JUDGMENT DTD.21.1.2009 IN ST.765/2007 of THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM) .................... PETITIONER/COMPALAINANT. -------------------------------------------- M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD,HAVING ITS REGISTERED OFFICE AT SREE GOKULAM TOWERS,66-ARCOT ROAD,KODAMBAKAM,CHENNAI-600 024, REP. BY ITS MANAGING DIRECTOR SRI.A.M.GOPALAN,THROUGH HIS P/A.HOLDER MR.RENJITH C.R., S/O.CHANDRASEKHARAN NAIR, AGED 28,LEGAL ASSISTANT, M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD., ATTUKAL SHOPPING COMPLEX, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.K.S.BABU RESPONDENTS(S): RESPONDENT/ACCUSED & STATE. --------------------------- 1. KALA DEVANAYAKAM, W/O.DEVANAYAKAM, T.C.50/690, DEEPAM, KULATHARA, KALADY,KARAMANA P.O. THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, BY ADV. SRI.P.K.BEHANAN FOR R1 BY ADV.SRI.K.VENUGOPALAN NAIR FOR R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 530 of 2011 ---------------------------------------- Dated this the 12th day of July, 2011 J U D G M E N T The complainant, in a prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act'), is the petitioner, who prays for leave to file an appeal against the judgment dated 21.1.2009 in S.T.No.765 of 2007 of the court of the Chief Judicial Magistrate, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 255(1) of Cr.P.C. 2. The case of the petitioner/complainant is that the accused issued Ext.P3 cheque for an amount of Rs.73,000/- towards the discharge of the liability, which is equal to the cheque amount, due to the complainant and when the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused and the amount covered by the cheque was not repaid by the accused to the complainant, in spite of Crl.L.PNO.530 of 2011 :-2-: statutory notice issued by the complainant and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the complainant approached the Chief Judicial Magistrate Court, Thiruvananthapuram by filing a complaint upon which cognizance was taken for the said offence and instituted S.T.No. 765 of 2007. During the trial, PW1 was examined for and on behalf of the complainant and Exts.P1 to P7 were marked. From the side of the defence, though no witness was examined, Ext.D1 chit book was produced and marked. Finally, the trial court, after considering the entire materials and evidence, has come to a conclusion that the complainant has failed in proving that Ext.P3 cheque is duly executed by the accused and the complainant failed to prove that the cheque bears consideration. It is the above finding and order of acquittal sought to be challenged in this Court for which the present application for special leave is preferred. 3. Learned counsel appearing for the petitioner Smt.N.Sudha, Crl.L.PNO.530 of 2011 :-3-: vehemently submitted that the findings of the court below and the order acquitting the accused under Section 255(1) of Cr.P.C. are incorrect in the light of the decision of this Court reported in Devan v. Krishna Menon (2010(2) KLT 397). 4. I am unable to accept the above contention. The learned Chief Judicial Magistrate in paragraph 8 of its judgment, specifically found as follows:- “8. It is pertinent to note that in the complaint, there is no whisper about any chitty transaction. It is only in the deposition of PW1, it is stated that the consideration of the cheque is the liability of the accused under the chitty transaction. The chitty account that is claimed to be with the complainant and which would be the best evidence is not produced by the complainant. Had the complaint been fair it would have contained the statement that the liability of the accused for the discharge of which the cheque was issued was that under the chitty transaction. In my view, the complainant is suppressing the best evidence regarding the consideration of the cheque. This suppression of best evidence in my view displaces the very presumption u/ss.118 or 139 of the Act regarding consideration.” From the above materials and evidence referred to by the learned Magistrate, which is beyond controversy and from the findings based Crl.L.PNO.530 of 2011 :-4-: upon the same, it is crystal clear that the essential ingredients of Section 138 of the N.I.Act have not been established by the complainant and the complainant has no consistent case regarding the transaction, execution of cheque and consideration. Therefore, no question of facts or law is yet to be considered and no case is made out to grant special leave. In the above circumstances, I find no reason to grant special leave to file appeal against the order of acquittal. In the result, this Criminal Leave Petition is without any merit and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ Crl.L.PNO.530 of 2011 :-5-: V.K.MOHANAN, J. O.P.No. JUDGMENT Crl.L.PNO.530 of 2011 :-6-: Dated:..