IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 Crl.L.P..No. 635 of 2011() -------------------------- ST.195/2005 of J.M.F.C.-II,THRISSUR .................... PETITIONER/COMPLAINANT ------------------------------------------ M/S.MANAPPURAM GENERAL FINANCE & LEASING LTD., MANAPPURAM HOUSE, VALAPPAD P.O., THRISSUR, REPRESENTED BY JUNIOR ASSISTANT, A.V.UNNIKRISHNAN. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. C.ABDUL RAHMAN, S/O.USMAN HAJI, RAZUGHAR, P.O.CHIRACKARA, THALASSERY, KANNUR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.V.SURENDRAN FOR R1 SRI.P.A.HARISH FOR R1 R2 BY PUBLIC PROSECUTOR SMT. REKHA . NAYAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 28/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.L.P. No. 635 of 2011 ---------------------------------------- Dated the 28th Day of July , 2011 The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the petitioner herein who seeks special leave from this court to file an appeal against the judgment dated 16.5.2009 in S.T.No.195 of 2005 of the court of Judicial First Class Magistrate Court-II, Thrisur, by which the learned Magistrate acquitted the accused under section 255(1) Cr.P.C 2. The case of the complainant is that the accused had taken on hire Mini Door Pick Up vehicle bearing Regn.No.KL.13.G.6939 on 28.3.2003 and an amount of Rs.91,132/- was due as on 14.7.2004 and when the accused was requested for the payment of that amount, he issued Ext.P2 cheque for the said amount and when the said cheque presented for encashment, the same was dishonoured due to insufficiency of funds in the account maintained by the accused and the said amount covered by the cheque was not paid in spite of the formal demand for the same and thus according to the complainant, the CRL.L.P.635/11 -:2:- accused has committed the offence punishable under section 138 of the N.I Act and with the above allegation, he approached the court of Judicial First Cass Magistrate- II, Thrissur, by filing a complaint for the said offence based upon which cognizance was taken and instituted S.T.No.195/2005. During the trial of the above case, PW1 was examined and Exts.P1 to P11 were marked from the side of the complainant and from the side of the defence, DW1 was examined and Exts.D1 to D17 were produced and marked. On conclusion of the trial , the trial court has found that there is no sufficient evidence to show that the cheque in question was issued by the accused towards the discharge of a legally recoverable debt or liability and consequently, found that it cannot be held that the accused has committed the offence punishable under Section 138 of the N.I.Act. Accordingly, the accused was acquitted under section 255(1) Cr.P.C. It is the above order of acquittal sought to be challenged by filing appeal for which special leave of this court sought under section 378(4) Cr.P.C. CRL.L.P.635/11 -:3:- 3. I have heard Sri C.Vathsalan, the learned counsel appearing for the petitioner and Sri V.V.Surendran appearing for the Ist respondent. 4. The learned counsel for the petitioner vehemently submitted that the findings of the trial court is absolutely baseless and against the evidence and materials on record. According to the learned counsel, though the hypothecation agreement was originally entered into during the year 2001, a new agreement was entered into on 28.3.2003 in the Tellichery branch of the complainant company and it is thereafter, the accused issued Ext.P2 cheque dated 14.7.2004 for an amount of Rs.91,132/-. It is also the submission of the learned counsel that Ext.D15 would show that the accused had visited the Tellicherry branch of the company and remitted certain amount for which the accused has also received receipt. Thus according to the learned counsel, the above fact and the evidence in support of the above fact are sufficient to hold that Ext.P2 cheque was issued for the discharge of the liability. It is also the submission of the learned counsel CRL.L.P.635/11 -:4:- that Ext.P11 agreement which contained the signature of the accused is sufficient to hold that there was renewal of the agreement and the undertaking by the accused to discharge the liability. Therefore, according to the learned counsel, the finding of the trial court is against the evidence and materials on record and Ext.P2 cheque was issued against the discharge of the liability that due to the complainant company out of the hire purchase agreement with respect to the Mini Door Pick Up vehicle. 5. On the other hand, Sri V.V.Surendran, the learned counsel appearing for the Ist respondent/accused submitted that the trial court came into the conclusion that Ext.P2 cheque was issued not for the discharge of any liability that due to the complainant, as the complainant himself failed to establish the alleged liability due from the accused to the complainant. According to the learned counsel for the accused, the materials available on record would show that Ext.P2 cheque is one of the cheque leaves obtained by the complainant at the time of execution of the hypothecation agreement and thus CRL.L.P.635/11 -:5:- according to the learned counsel, the accused has succeeded in making out a probable case and therefore, there is no scope for any interference with the order of acquittal recorded by the learned Magistrate. Having regard to the facts and circumstances and in the light of the evidence and materials on record, particularly in the light of the rival pleadings, the question to be considered is whether the petitioner has succeeded in making out a case to grant special leave so as to file appeal against the order of acquittal recorded by the learned Magistrate. On a scanning of the judgment sought to be impugned, it can be seen that the vehicle was purchased as per agreement dated 18.1.2001 for a amount of Rs.1,25,000/- and when the accused defaulted in making the instalments, the vehicle was seized by the complainant/company and the same was sold for a sum of Rs.90,242/-. It is also borne out from the records produced by the company that the vehicle was sold on 29.5.2004 for a sum of Rs.71,000/-. The trial court has found that in Ext.D15, issued by the complainant, it is stated that the vehicle was sold for CRL.L.P.635/11 -:6:- Rs.90,242/-. It is borne out from the records and the evidence of PW1 that the complainant/company has also filed a suit against the accused for realisation of certain amount from the accused connected with the hire purchase agreement. In the said suit, the decree sought was for Rs.91132/- but the civil court has declined such prayer. So, even though according to the complainant, the total due out of the hire purchase agreement is for an amount of Rs.1,08,000/-, the accused issued Ext.P2 cheque only for Rs.91,132/-, which according to me , cannot be accepted as correct, especially, when the said claim is not supported by any evidence or materials. After considering the evidence and materials on record, the trial court has found that, it is difficult to believe the version of the complainant that, after the seizure of the vehicle and the sale of the same, the accused came to the office of the complainant and issued the cheque for such an amount. It is also borne out from the evidence that PW1 who was examined for and on behalf of the company, he has no direct knowledge regarding the execution and issuance of CRL.L.P.635/11 -:7:- the cheque. On the other hand, the evidence adduced from the side of the defence established, especially, in the light of the endorsement contained in Ext.D16 pass book, that the cheques which bearing consecutive serial numbers starts from 0318741, 0318742, 0318743 and 0318744 were encashed in the month of August 2001, and cheque No.0318749 was encashed in the month of October 2001. Ext.P2 cheque is bearing No.0318745. In the absence of any positive evidence to show that the accused came to the Naikkanal branch of the complainant company and issued the cheque, according me, the trial court is justified in opting the evidence of the accused that ExtP2 cheque was one of the cheque leaves obtained by the complainant at the time of execution of the hypothecation agreement. Therefore, in the absence of any evidence or materials regarding the actual liability if any, connected with the hire purchase agreement, and in the absence of any evidence regarding the execution and issuance of the cheque, I am of the view that the defence has succeeded in making out a probable case so as to CRL.L.P.635/11 -:8:- rebut the presumption which is otherwise available in favour of the complainant under section 139 of the Negotiable Instruments Act. That being the position, even in case of an appeal is entertained, according to me, there is no scope for interference with the order of acquittal recorded by the trial court since there is nothing remained to be settled either on fact or on law. Thus according to me, the petitioner has miserably failed to make out a case so as to grant leave of this court under section 378(4) Cr.P.C. In the result, there is no merit in the Crl.L.P and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/-