IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH NOVEMBER, 2011 / 24TH KARTHIKA, 1933 Crl.L.P..No. 993 of 2011 (AGAINST THE JUDGMENT IN CC.NO.308/2009 of THE CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA) .................... PETITIONER/COMPLAINANT: ----------------------------------------- IYPE VARGHESE,ANGEL GUARD, THOTTUVATHALA, KANAKARY, ALAPPUZHA. BY ADV. SRI.S.RAJEEV RESPONDENTS(S): -------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 2. THOMAS JOY, S/O.OUSEPH THOMAS, KAYYATTIL-CHETTUPARAMBIL, THOTTUVATHALA P.O., KAINAKARY, ALAPPUZHA-688501. R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. BY ADV. SRI.S.SANAL KUMAR FOR R-2 BY ADV. SMT.BHAVANA VELAYUDHAN FOR R-2 BY ADV. SMT.T.J.SEEMA FOR R-2 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 993 of 2011 ---------------------------------------- Dated this the 15th day of November, 2011 O R D E R 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 herein, who seeks special leave under Section 378(4) of the Criminal Procedure Code (for short 'the 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 under Section 255(1) of the Cr.P.C. 2. According to the complainant, the accused issued a cheque for Rs.90,000/- in discharge of the debt against the complainant and when the said cheque was presented for encashment, it was dishonoured due to insufficient fund in the account of the accused and the amount covered by the dishonoured cheque was not paid in spite of the lawyer notice. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the CRL.L.P.NO. 993 of 2011 :-2-: N.I.Act. With the above allegation, the complainant approached the court of Chief Judicial Magistrate, Alappuzha and C.C.No.308 of 2009 was instituted and during the trial of the case, PW1 was examined from the side of the complainant and Ext.P1 to P6 were produced. Though no witness was examined from the side of the defence, Ext.D1 series are produced and marked as defence exhibits. After considering the evidence and materials on record, the learned Chief Judicial Magistrate has found that there is no evidence to see the existence of a debt of Rs.90,000/- against the accused and no evidence for execution of Ext.P1 cheque and accordingly, found that the complainant has failed to prove the execution of cheque and existence of the liability and consequently, the accused is acquitted. It is the above finding and acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for under Section 378 (4) of the Cr.P.C. 3. Learned counsel for the appellant vehemently submitted that the complainant is entitled to get a presumption as envisaged under CRL.L.P.NO. 993 of 2011 :-3-: Sections 118 and 139 of the N.I.Act since the cheque in question produced from the possession of the complainant which contained the signature of the accused. It is also the submission of the learned counsel that the evidence adduced by the defence is not sufficient to prove the defence version since the documents produced on the part of the defence showing the receipt of the amount is against the case of the defence. According to the learned counsel, the complainant has explained the difference in the handwriting that contained in the cheque. But, the trial court miserably failed to appreciate the same and opted to accept the defence case. Learned counsel submitted that the finding of the trial court is incorrect and illegal and liable to be interfered with for which an appeal is to be filed and therefore, the petitioner is entitled to get leave as sought for. 4. I have carefully considered the arguments of the learned counsel for the petitioner and I have gone through the judgment of the trial court. 5. In the light of the claim of the complainant and the defence CRL.L.P.NO. 993 of 2011 :-4-: and the materials and evidence on record and particularly the findings of the court below, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255(1) of Cr.P.C. 6. The specific case of the complainant is that the accused borrowed an amount of Rs.90,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque whereas the case of the accused is that connected with the prior transaction, the complainant has obtained a blank cheque which is duly signed by the accused and the said cheque is misused by the complainant by writing the amount and that is Ext.P1 cheque. On a perusal of the judgment of the trial court which is sought to be impugned, it can be seen that the learned Magistrate, by assigning proper and cogent reasons, refused to accept the case of the complainant regarding the transaction claimed by the complainant and execution and issuance of the cheque. According to the learned CRL.L.P.NO. 993 of 2011 :-5-: Magistrate, regarding the transaction and availing of `.90,000/-, there is no sufficient pleading and proof. The learned Magistrate has found that the complainant has failed to mention the date of payment specifically in the complaint. Learned counsel submitted that during the cross-examination, the complainant has mentioned the date that was not considered by the learned Magistrate. According to me, if the transaction was true and correct, the same should have been found a place in the complaint as well as in the proof affidavit. In the absence any specific averment regarding the actual date of payment, there is no meaning in giving a date during the cross-examination. Though the complainant has claimed that the accused has executed and issued the cheque, the facts and circumstances involved in the case disprove the above claim of the complainant. In this juncture, it is pertinent to recall the case of the defence and according to the accused, the cheque in question was the one which was entrusted with the complainant connected with the earlier transaction without mentioning the amount, but simply putting his signature. The learned Magistrate has CRL.L.P.NO. 993 of 2011 :-6-: specifically found that the name of the complainant was written in Malayalam, whereas the amount both in figures and words and the date were written in some other handwriting. In order to overcome the above adverse situation, it appears that PW1 has deposed that it was written by the brother's son of the accused. The learned Magistrate has observed that PW1 is not aware of the name of the person who had written those entries in Ext.P1 cheque. It was further observed and found by the learned Magistrate that the accused is capable of writing and he has written the name of the complainant in the cheque also and if the accused intended to issue the cheque for Rs.90,000/- under a liability ordinarily, it must have been filled up by the accused himself and the above reason of the learned Magistrate appears to be very correct and acceptable to a prudent man. 7. Considering the facts and circumstances indicated above, according to me, the complainant has miserably failed to prove the transaction and the execution and issuance of the cheque as claimed by the complainant. If that be so, according to me, the present petition CRL.L.P.NO. 993 of 2011 :-7-: is out of any merit and the prayer sought for cannot be granted. The reasons stated by the learned Magistrate appear to be very cogent and after appreciation of the evidence and materials on record and in the absence of any perverse finding, the order of acquittal cannot be interfered with. Therefore, there is no merit in this petition and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO. 993 of 2011 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R CRL.L.P.NO. 993 of 2011 :-9-: Dated:2. ..2011