IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 Crl.L.P..No. 1023 of 2010() --------------------------- CC.180/2009 of J.M.F.C.,ERATTUPETTA .................... (S): PETITIONER/COMPLAINANT: ------------------------------------------- SUNNY JACOB @ THANKACHAN S/O.JACOB, THANNIPATHIYIL HOUSE, PLASSSANAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT. BY ADV. SRI.P.P.JNANASEKHARAN SRI.A.M.JYOTHI BASU SRI.S.DILEEP RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. M.G.PARAMESWARA PANICKER, GOVINDA VIHAR, VALIYATHURUTHI P.O., THIRUVATTA, KUDAYAMPADI, KOTTAYAM DISTRICT-686 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.1023 of 2010 ----------------------------------------------- Dated 28th October, 2010. O R D E R This petition is for leave to file an appeal against an order of acquittal. 2. The complainant is the petitioner herein. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. According to him, accused borrowed an amount of Rs.1,00,000/- on 30.5.2007, Rs.50,000/- on 15.6.2007 and Rs.50,000/- on 30.6.2007. Towards that liability, he issued cheques dated 31.12.2008 for Rs.1,00,000/-, Rs.50,000/- and another Rs.50,000/- drawn on Nedungadi Bank. Apart from this, two other cheques were also drawn on the same bank by the accused in favour of the complainant for Rs.82,000/- and Rs.38,000/-. When the cheques were presented, those were dishonoured for the reason “funds insufficient”. Statutory notice was issued to the accused, but he failed to pay the amount. Hence, the complaint was filed. 3. On the side of the complainant, PW1 was Crl.L.P. No.1023/10 2 examined and Exts.P1 to P10 were marked. The accused did not adduce any defence evidence, but he stated that 3 cheques were given by him earlier, as security, when he had some transaction with the complainant in connection with film distribution and the entire amount was paid off. His case is that the cheques which were given as security were misused. 4. On a consideration of the evidence on record, the trial court found that as per the evidence of PW1, the complainant advanced a loan of Rs.1,00,000/-, Rs.50,000/- and another amount of Rs.50,000/- on 30.5.2007, 15.6.2007 and 30.5.2007 respectively. On a consideration of the evidence, it was held as follows :- “On a consideration of the evidence available and the discussions made it can be seen that Ext.P1 to P3 cheques are issued from the account maintained by the accused with Nedungadi Bank, Kottayam which was amalgamated into Punjab National Bank in the year 2003. These cheques 3 in numbers are seen dated 31.12.2008. The complainant in his cross examination has admitted that he is aware of the amalgamation of the Nedungadi Bank in the year 2003 and according to him, the amount Crl.L.P. No.1023/10 3 covered by the three cheques were given to the accused on 30.5.2007, 15.6.2007 and 30.6.2007 and in lieu the three cheques obtained. A perusal of the cheque and its numbers are also relevant in this context. Out of the three cheques, the numbers are 0592381, 0608571 and 0644846. It is clear that the three cheques does not originate from one cheque book and the huge variations in the number can lead to the conclusion that it is issued at different periods with long intervals which will probabilise the case put forward by the accused. Moreover, it is also not a natural conduct that one will accept the cheque of a bank which is already not in existence that also when huge amount of lakhs are involved. 5. On hearing learned counsel for petitioner and on going through the judgment, I do not find any reason to come to a different finding. No infirmity is pointed out, which will call for any interference. According to the petitioner, accused failed to rebut the statutory presumption under Section 139 of the Negotiable Instruments Act. But, the trial court found that the alleged execution of the cheque on 31.12.2008 is doubtful. Crl.L.P. No.1023/10 4 Since the execution is not proved, the question of presumption under Section 138 of the Negotiable Instruments Act will not arise. There is no reason to interfere in the findings or the order. The findings are not unreasonable or perverse. There is no ground to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs