IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 Crl.L.P..No. 85 of 2011() ------------------------- (C.C.1242/2008 OF JFCM, KUNNAMKULAM) (S): PETITIONER/COMPLAINANT ------------------------------------------ N.D.LAZAR, S/O.DEVASSY, NEELANKAVIL HOUSE, WARD NO.8/543, PERAMANGALAM, THRISSUR, THE POWER OF ATTORNEY HOLDER OF V.R.JOY, S/O.RAPPAI, VALIYA VEETTIL, MOUNT SAYAN ROAD, CHEERACHI DESOM, P.O.OLLUR, THRISSUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): ACCUSED ---------------------- 1. GEE VARGHESE, KOYIKKAL HOUSE, KANIMANGALAM SOUTH, P.O.CHETTIKULANGARA, MAVELIKKARA, ALAPPUZHA. 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 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No.85 of 2011 ----------------------------------------------- Dated 3rd February, 2011. O R D E R This petition is filed for leave to file an appeal against an order of acquittal. 2. Appellant is the complainant. He filed a complaint before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act (for short. 'the Act') against first respondent. To prove the prosecution case, power of attorney of the complainant was examined as PW1. Exts.P1 to P6 were marked. 3. The accused denied the entire allegations and contended that no such transaction had taken place and the cheque, Ext.P1 was not executed by him. He produced Ext.D1, certified copy of a plaint and contended that the said suit was filed by complainant for realisation of Rs.1,00,000/-. It was alleged in the said suit by complainant that accused had borrowed Rs.15,500/- Dirhms on three occasions and it is equivalent to Rs.1,85,000/-. In order to discharge the said liability, accused issued two cheques, of which one covers an amount of Rs.1,00,000/-. It was returned as time barred when Crl.L.P. No.85/11 2 presented in the bank. It was based on the said cheque that the complainant instituted the suit by Ext.D1. The second cheque referred to in Ext.D1 plaint is Ext.P1 produced in this case. 4. The trial court, after considering the evidence in detail, entered a finding that petitioner failed to prove the execution of Ext.P1 cheque and also passing of consideration. The findings were based mainly on Ext.D1. Regarding the consideration, the trial court observed as follows in paragraph 11 of the order : “11. Now the next question to be considered is whether Ext.P1 cheque is supported with any consideration. According to PW1 accused came to his house and borrowed an amount of Rs.85,000- from complainant. The above version of PW1 is belied by Ext.D1 plaint. The principal complainant alleged a case that accused borrowed an amount of Rs.15,500/- Dhirhms on 3 different occasions and in order to discharge that liability he issued Ext.P1 cheque. Therefore regarding the passing of the consideration is concerned the oral evidence of PW1 is totally unbelievable.” 5. The trial court also considered the contents of Crl.L.P. No.85/11 3 Ext.D1, certified copy of the plaint in the suit filed by the complainant for realization of Rs.1,00,000/- and other aspects and came to a conclusion that PW1 failed to prove execution of the cheque and hence, the complainant is not entitled for presumption under Section 139 of the Act. The relevant portion at page 5 of the impugned order reads as follows : “As per Ext.D1 suit the complainant alleged that the accused has borrowed an amount of Rs.15,500/- Dhirhms on 3 occasions and which is equivalent to Rs.1,85,000/-. In order to discharge that liability the accused issued a cheque bearing No.923942 and 923944 of Syndicate Bank, Kayamkulam Branch. The cheque No.923942 covers an amount of Rs.1,00,000/-. When the said cheque was presented for collection it was returned as time barred. On the basis of that cheque he instituted the said suit. The second cheque bearing No.923944 referred in Ext.D1 suit is the Ext.P1 cheque in this case. Therefore on a reading of Ext.D1 plaint the case put forward by PW1 is totally unsustainable. Therefore the oral evidence of PW1 is in contradiction with Ext.D1 suit. Therefore, the oral evidence of PW1 is in contradiction with Ext.D1 suit. Therefore the oral evidence of PW1 is highly suspicious regarding the execution of Ext.P1 cheque.” 6. Learned counsel for petitioner submitted that the Crl.L.P. No.85/11 4 trial court committed an error in acquitting the accused, taking into account certain contradictions in the evidence of the power of attorney and other documents and submitted that the trial court ought to have drawn the presumption in favour of the complainant under Section Section 139 of the Act. 7. I do not find any merit in these submissions. Those are not sufficient to set aside the findings entered by the trial court, which are extracted above. The trial court has correctly found that presumption under Section 139 of the Act cannot be drawn in favour of complainant, since he failed to prove execution of Ext.P1 cheque. In the above circumstances, I am not inclined to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs