IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 Crl.L.P..No. 615 of 2011() -------------------------- ST.1229/2006 of J.M.F.C.-VIII, TRIVANDRUM .................... APPELLANT/COMPLAINANT ----------------------------------------- THIRUVITHAMCORE CO-OP. SOCIETY LTD. NO. T. 1530, SREEKANTESWARAM, THIRUVANANTHAPURAM. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.N.MANU THAMPI RESPONDENTS: ACCUSED ---------------------- 1. MOLLY THOMAS, VALIYA VEEDU, TC 24/1553, THYCADU P.O., THIRUVANANTHAPURAM, PIN-695014. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SRI P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.L.P. No. 615 of 2011 ---------------------------------------- Dated the 19th July, 2011 ORDER This is an application filed under section 378(4) Cr.P.C seeking special leave of this Court to file an appeal against the judgment dated 31.3.2011 in S.T.No.1229/2006 of the court of Judicial First Class Magistrate Court -VIII, Thiruvananthapuram since the learned Magistrate, vide the above judgment, acquitted the accused for the offence punishable under section 138 of the N.I Act, upon the complaint filed by the petitioner herein. 2. I have heard Sri Manu Thampi, the learned counsel appearing for the petitioner herein. I have perused the judgment of the trial court sought to be challenged in the appeal. 3. The facts which are beyond dispute is that the accused in the above complaint is a guarantor for the lonee in a transaction by which the Thiruvithamcore Co-operative Society Ltd.No.T.1530, Sreekanteswaram, Thiruvananthpauram, released a sum of Rs.58,705/- to one CRL.LP 615/11 2 Shajahan. When the repayment of loan was defaulted, towards the discharge of the liability that arose out of the loan transaction, the accused issued a cheque for Rs.58,705/- in favour of the said society. Ext.P1 is the cheque thus issued by the accused. So the financial institution which released the loan in favour of the said Shajahan is the Thiruvithamcore Co-Operative Society Limited No.T.1530, Sreekanteswaram, Thiruvananthapuram and Ext.P1 cheque issued was also in favour of the said Society. Thus the said society is the payee of Ext.P1 cheque. Admittedly, the complaint was filed and the complainant is shown as one Indu S., D/o Chandrasekharan Nair, Secretary, Thiruvanthamcore co- operative Society Ltd.No. 1530, Sreekanteswaram, Thiruvananthapruam. It is also borne out from the judgment of the trial court that on 9.8.2006, vakkalath was filed for the complainant and in the said vakkalath, complainant is mentioned as Indu S., Secretary, CRL.LP 615/11 3 Thiruvithamcore Co-operative Society Ltd. No.1530. It can be further seen that, thereafter, the vakkalath was changed and another vakkalath was filed on 7.11.2008 and in the said vakkalath, complainant is shown as Thiruvithamcore Co-operative Society represented by its Secretary S. Indu. It is also revealed from the judgment that, thereafter CMP No. 270/2010 was filed on behalf of the complainant to re-open the evidence wherein also the complainant is shown as Thiruvithamcore Co-operative Society represented by its Secretary. On the basis of the above facts, the trial court held that the name of the complainant should have been specifically stated everywhere in the complaint in a unique manner. After considering the facts involved in the case, the trial court found that though the accused has a case that considerable portion of the loan amount was repaid by Shajahan, the lonee, PW1 is unable to specify the amount repaid and no document is produced to show that the CRL.LP 615/11 4 amount shown in Ext.P1 is due. In paragraph 14 of the judgment, the trial court has held: “From the above discussion, it can be seen that there is confusion regrading the complainant whose name is not mentioned in a unique manner in all the places. It is mentioned differently as Indu S, Secretary, and also as the Society represented by its Secretary. But cheque is in favour of the Secretary. The name of the complainant should have been specifically stated everywhere in a unique manner.” 4. This Court, in the decision in Mahesh Kumar v. Taxi Drivers Co-op.Society Ltd., has clarified the legal position and stated that if the payee is a company or a partnership firm or society, the complaint can be filed only by such institution. In the present Case, though the payee is the Society namely, Thiruvithamcore Co-operative Society Limited No.T.1530, Sreekanteswaram, Thiruvananthapuram, as revealed from the cause title, the complainant is one Indu S., d/o. Chandrasekahran Nair, who was working as Secretary, Thiruvananthapuram Co- operative Society Ltd. No.T.1530, Sreekanteswaram, CRL.LP 615/11 5 Thiruvannathapuram. Though the learned Magistrate has omitted to give any such reason stated above, I am of the view that , even if an appeal is entertained, because of the particular factual input in the case and in view of the above decision of this Court, there is no scope for any interference with the order of acquittal. As the facts and the law is already settled, I find no reason to grant the special leave as sought for in this Crl.L.P. In the result, there is no merit in this petition and accordingly, this petition is dismissed. V.K.MOHANAN, JUDGE KVM/- CRL.LP 615/11 6