IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 Crl.L.P..No. 1215 of 2010() ----------------------------------- CC.1286/2003 of J.M.F.C. - I, KARUNAGAPPALLY .................... PETITIONER/COMPLAINANT : ------------------------------------------ V.HARIDAS, VADAKKAYYATHU VEEDU, PANDARATHURUTHU MURI, ALAPPADU VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADVS. SRI.B.BIPIN SRI.N.SUNIL JOSEPH RESPONDENT/STATE & ACCUSED: --------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANOJ SEBESTAIN, THARAPPEL VEEDU, MADUKKAKUNNU P.O., POOVARNIYIL, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT. 686577. BY PUBLIC PROSECUTOR, SRI. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------- Crl.L.P.No. 1215 of 2010 --------------------------------- Dated this the 23rd day of August, 2011 ORDER The complainant in a prosecution for the offence under Section 138 of the N.I.Act, is the petitioner as he is proposed to file an appeal against the order of acquittal recorded by the learned Magistrate under Section 255(1) of the Cr.P.C. by his judgment dated 15.10.2010 in C.C.No.1286/2003, for which he seeks leave of this Court under Section 378(4) of the Cr.P.C. 2. The case of the complainant is that the accused came to the house of the complainant and borrowed a sum of Rs.2,30,000/- from the complainant on 20.08.2001 and according to the complainant the accused promised to return the amount on 20.10.2001. Accordingly the accused issued a cheque, which when presented for encashment, was dishonoured as there was no sufficient funds in the account maintained by the accused. The cheque amount was not paid in spite of the statutory notice sent by the complainant. Thus according to the complainant, the accused had committed the offence punishable under Section 138 Crl.L.P.No. 1215 of 2010 2 of the N.I.Act. With the above allegation and by filing a complaint, the complainant approached the Judicial First Class Magistrate, Karunagapally upon which the learned Magistrate took cognizance for the offence under Section 138 of the N.I.Act and thus instituted C.C.No.1286/2003. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P7 documents. No evidence either oral or documentary were produced from the side of the accused. On the basis of available evidence and materials, the learned Magistrate has concluded that the complainant could not prove that the accused issued Ext.P1 cheque to him in discharge of his liability due to the complainant. Consequently, found that the accused has not committed an offence under Section 138 of the N.I.Act and accordingly, he was acquitted. It is the above findings and order of acquittal that are sought to be challenged in appeal for which leave of this court sought for under Section 378(4) of Code of Criminal Procedure. 3. I have heard Sri.B.Bipin, learned counsel appearing for the petitioner and learned Public Prosecutor. I have also perused Crl.L.P.No. 1215 of 2010 3 the judgment of the learned Magistrate of the trial court. After considering the case of the defence, the trial court found that the defence has denied the execution and the issuance of the cheque and thereafter, the learned Magistrate has proceeded to find out whether the complainant has succeeded in establishing the claim of the complainant regarding the execution and issuance of the cheque as well as the liability as alleged by the complainant. The trial court on the basis of the evidence and materials on record found that the complainant was not having the financial capacity to cast such a huge amount and also on the basis of the other circumstances, disbelieved the version of PW1 with respect to the transaction. 4. But the learned counsel appearing for the petitioner vehemently submitted that it is brought on record that the petitioner has various business and a business man so as to enter into the transaction with the accused as claimed by the complainant. It is also pointed out by the learned counsel that even according to the defence suggestion, the complainant has more than one transaction with the accused and the above Crl.L.P.No. 1215 of 2010 4 suggestion of the defence itself is sufficient to show that the findings of the learned Magistrate is incorrect. In the light of the findings of the learned Magistrate on the basis of the evidence and materials referred to in the impugned judgment and in view of the contentions raised by the learned counsel for the petitioner, the question to be considered is whether the petitioner has succeeded in making a case so as to obtain special leave under Section 378(4) Cr.P.C. 5. The case of the complainant is that the accused came to the house of the complainant on 20.08.2001 and borrowed an amount of Rs.2,30,000/- with the promise that the amount would be repaid on 20.10.2001 and on that day itself a postdated cheque was given for the said amount. Ext.P1 is the said cheque, which when presented for encashment dishonored as there was no sufficient fund in the account of the accused. According to the defence, there was no transaction with the complainant and no cheque was executed and issued in favour of the complainant and it was also the case of the defence that cheque in question is the one, which was given to one Mr.Mohanan. During the trial, to Crl.L.P.No. 1215 of 2010 5 substantiate the case of the complainant, he himself was mounted to box and gave evidence as PW1. During his evidence, he had asserted that he lent money to the accused. But the defence, during the cross-examination, it is brought on record that PW1 had no job at that time and he was a part time peon in an office. PW1 has also admitted that the accused is residing 200 kms away from the house of the complainant. During the cross- examination, it was also brought out in evidence that at his instance Crime No.314/2002 was registered in the Karunagapally Police Station and a case on basis of the police report is pending before the same trial court. It is also brought out that in the said criminal case the allegation is that the accused borrowed an amount of Rs.2,00,000/-from PW1 on 06.05.2001 and issued a cheque on 20.08.2001. On the basis of the above evidence, the trial court which got the privilege to observe the demeanor of the parties came to the conclusion that the complainant has not proved that the accused issued Ext.P1 cheque to PW1 in discharge of liability of the accused due to the complainant. It is now settled position that when the accused denied the execution Crl.L.P.No. 1215 of 2010 6 of the cheque and the transaction, it is for the complainant to prove the transaction which claimed by him with sufficient evidence and materials. The admitted fact would show that the complainant was working as a part time peon in an office and the accused is residing 200 kms away from the residence of PW1, that complainant. On the basis of the discussion that contained in paragraphs 12 and 13 of the judgment, the learned Magistrate has entertained serious doubt regarding the source of PW1, which according to me, in the given facts and circumstances of the case, appears to be correct. In the absence of any positive evidence regarding the transaction as claimed by the complainant and when the accused has succeeded in bringing out the fact that the complainant has no financial capacity, according to me, the findings of the learned Magistrate that the complainant has failed to establish the case that the accused issued Ext.P1 cheque to discharge of his liability, appears to be correct and the learned Magistrate is fully justified in his finding. Therefore, even if the appeal is entertained, according to me, there is no scope for any interference with the above findings as well as the order of Crl.L.P.No. 1215 of 2010 7 acquittal recorded by the learned Magistrate. Therefore, the petitioner has failed to a case to grant special leave under Section 378(4) of Cr.P.C. In the result, there is no merit in this petition and accordingly the same is dismissed. V.K.MOHANAN, JUDGE. ln