IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 Crl.L.P..No. 854 of 2011() -------------------------- ST.232/2008 of J.M.F.C.-II, NADAPURAM .................... PETITIONER/COMPLAINANT ------------------------------------------ RAVEENDARAN.V.K,AGED 46 YEARS, S/O.(LATE)NARAYANAN NAMBIAR,VANNATHAMKANDIYIL, P.O.VISHNUMANGALAM, KALLACHI, KOZHIKODE DISTRICT. BY ADV. SRI.U.K.DEVIDAS RESPONDENT(S): ACCUSED ---------------------- 1. SREENIVASAN,S/O.(LATE)P.SANKARAN NAMBIAR KIZHAKKEPARAMBATH HOUSE, P.O.VISHNUMANGALAM, KALLACHI(VIA),KOZHIKODE DISTRICT- 673506. 2. STATE OF KERALA REP. BY PUBLIC ROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.R.K.MURALEEDHARAN R2 BY PUBLIC PROSECUTOR SRI P.A. SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 854 of 2011 ---------------------------------------- Dated the 29th day of September, 2011 ORDER The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.') to file an appeal against the order of the trial court, by which the learned Magistrate, in his complaint, acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused demanded a sum of Rs.30,000/- on 1.12.2007 with the undertaking that the said amount will be repaid within two months and accordingly the complainant gave a sum of Rs.25,000/- on 2.12.2007, and after several demands from the part of the complainant, on 12.3.2008 the accused issued a cheque dated 14.3.2008 for a sum of Rs.16,000/- towards the discharge of the said liability. It is also the case of the complainant that on 13.3.2008, the accused contacted the complainant and requested him not to present the cheque on CRL.P. 854/11 2 the date shown therein. Thus finally the cheque was presented on 24.7.2008, but the same was dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the amount covered by the cheque in spite of a statutory notice sent by the complainant. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act and accordingly, S.T.No.2455/2008 was instituted in the court of Judicial First Class Magistrate court-I, Nadapuram, upon the complaint preferred by the complainant. Thereafter the case was transferred to Judicial First Class Magistrate court-II, Nadapuram wherein the case was renumbered as S.T.No.232/2008. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P9. Though no witness was examined from the side of the defence, Exts.D1 and D2were produced. After considering the evidence and materials on record, the trial court has found that the complainant has failed to prove that Ext.P1 is a cheque issued by the accused in discharge of a legally enforceable debt and consequently, held that the accused is not guilty under section 138 of the NI Act and CRL.P. 854/11 3 accordingly, he is acquitted. It is the above finding and order of acquittal is proposed to challenge by the complainant in an appeal, for which the complainant in this proceedings seeks leave of this court under section 378(4) Cr.P.C. 3. I have heard Sri Raveendran V.K., the learned counsel appearing for the petitioner and Sri R.K.Muraleedharan, the learned counsel appearing for the Ist respondent. I have also perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that the evidence on record, mainly the deposition of PW1 and other documentary evidence would specifically prove the allegation against the accused, but the learned Magistrate under a wrong notion came to the conclusion that the evidence of PW1 is not probable. In support of the above submission, the learned counsel specifically pointed out that the accused has admitted the execution and issuance of the cheque and consequently, the complainant is entitled to get the presumption under sections 118 and 139 of the N.I.Act but the learned Magistrate did not extend the above benefit in favour of the complainant. Thus according to the learned counsel, the findings and order of CRL.P. 854/11 4 acquittal recorded by the trial court is liable to be interfered with and therefore the petitioner is entitled to get leave of this court as prayed for. 5. The specific case of the complainant is that the accused borrowed a sum of Rs.25,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque for Rs.16,000/- which when presented for enashment, dishonoured and therefore the accused has committed offence punishable under section 138 of the Negotiable Instruments Act. Whereas the specific defence taken by the accused is that he had borrowed only a sum of Rs.15,000/- from the complainant and towards the security for the said loan, the accused issued Ext.P1 cheque and subsequently, the entire amount with interest was paid off and there is no liability towards the complainant. The trial court , on the basis of the materials and evidence which mentioned above, opted to accept the case of the accused and rejected the case of the complainant. In the light of the arguments advanced by the learned counsel for the petitioner and in view of the findings of the court below and on the basis of the materials referred to above, the only question to be considered is CRL.P. 854/11 5 whether the petitioner has succeeded in making out a case so as to grant leave as sought for in this petition under section 378(4) Cr.P.C. 6. On a scanning of the judgments sought to be impugned, it can be seen that, in order to prove the claim of the complainant, the only evidence available is that of the deposition of PW1 and Exts.P1 to P9. Ext.P1 is the cheque and other documents are connected with the dishonour of cheque and statutory notice. Besides the interesed testimony of PW1, absolutely, there is no evidence to substantiate the claim of the complainant that the accused demanded a loan for Rs.30,000/- and he paid Rs.25,000/- to the acucsed. In this juncture it is relevant to note that even though the complainant has a case that he gave Rs.25000/- to the accused, the cheque in question contains a different amount, i.e., Rs.16,000/- only. There is no explanation from the side of the complainant as to why he accepted Ext.P1 chaque for an amount of Rs.16,000/- when the amount borrowed by the accused is Rs.25000/- as claimed by the complainant. The above fact itself is sufficient to shake the credibility of the case of the complainant. In the absence of CRL.P. 854/11 6 any positive evidence retarding the transaction, according to me, the learned Magistrate is fully justified in accepting the case of the defence. 7. The defence admitted the execution and issuance of cheque for Rs.16,000/- since according to the accused, he obtained a sum of Rs.15,000/- from the complainant on 14.1.2008 on an undertaking that the same will be repaid with interest at the rate of Rs.1000/- within two months and Ext.P1 was handed over as security towards the said transaction. Exts.D1 and D2, two contemporary documents, further probabilise the defence version. The case of the complainant is that the accused approached him on 1.12.2007 and the complainant paid Rs.25,000/- to the accused on 2.12.2007 and thereafter the accused approached the complainant and issued Ext.P1 cheque dated 12.3.2007 bearing date as 14.3.2008 for Rs.16,000/-, is not corroborated by any independent evidence other than the evidence of PW1. Therefore the materials and evidence on record tallied and support the defence set up by the accused. In the absence of any positive evidence that the accused obtained Rs.25,000/- from the complainant and when CRL.P. 854/11 7 there is no explanation by the complainant for accepting Ext.P1 cheque for Rs.16,000/- when the due amount is 25,000/-, the defence had succeeded in rebutting the presumption, which is otherwise in favour of the complainant. Therefore, according to me, the learned Magistrate of the trial court is fully justified in his finding and the order of acquittal recorded in favour of the accused. Hence, even if an appeal is entertained, there is no scope for interference with the above order of acquittal. Therefore, the petitioner is not entitled to get any relief as sought for in this petition. Hence, this petition is dismissed declining leave as prayed for under section 378(4) Cr.P.C. V.K.MOHANAN, JUDGE kvm/- CRL.P. 854/11 8