IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 Crl.L.P..No. 919 of 2010() --------------------------------------- CC.8/2009 of J.M.F.C. - II, CHALAKUDY .................... PETITIONER (APPELLANT) /COMPLAINANT ------------------------------------------------------------------- MOOTHEDAN AGENCIES REP. BY ITS PROPRIETOR ANTO, S/O.MOOTHEDAN THOMAS, MELOOR VILLAGE, DESAM, MUKUNDAPURAM TALUK. BY ADV. SRI.M.V.MATHEW RESPONDENT(S): STATE(NON PARTY) AND THE ACCUSED ------------------------------------------------------------------------------------------- 1. MAX WORTH (INDIA) PAINTS AND CHEMICALS (P) LTD., REPRESENTED BY ITS MANAGING DIRECTOR BINU MAHESH, S/O.LATE MAHESH, "MANESHAM" PUSHAKKULANGARA DESOM, PULLIVAYAL POST OFFICE, KANNUR DISTRICT, THALIPARAMBU POLICE STATION. 2. SUVARNA, W/O.LATE MAHESH, MANAGING DIRECTOR OF MAX WORTH (INDIA) PAINTS AND CHEMICALS (P) LTD., "MANESHAM" PUSHAKKULANGARA DESOM, PULLIVAYAL POST OFFICE, KANNUR DISTRICT, THALIPARAMBU POLICE STATION. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SOU. K. HEMA, J ---------------------- Crl.L.P.No. 919 OF 2010 ----------------------------------- Dated this the 15th day of September, 2010 O R D E R This is a petition for special leave. 2. This petition is filed for special leave to file appeal against acquittal. Petitioner filed a private complaint against the respondent alleging offence u/s.138 of Negotiable Instruments Act. First accused is a Company represented by its Manager. Second accused is Director of the company. There is an agreement between the parties regarding the business and as per the agreement, complainant has to distribute the products of the first accused company, as per the orders taken by the company. As per the terms of the agreement, complainant paid Rs.1,00,000/- to the accused as security. He suffered financial loss since the accused failed to comply the terms and conditions in the agreement. 3. Subsequently a notice was served on the complainant on 1.11.2006 canceling the agreement. As per the terms and conditions of the agreement accused ought to have given Rs.1,00,000/- to the complainant. At the time of agreement, Crl.L.P. No.919/10 2 accused had also issued a cheque to the complainant drawn on Cathelic Syrian Bank towards repayment of thew security amount. After cancellation of the agreement, complainant approached the accused for repayment of the security amount. Accused had made an endorsement in the said cheque by writing the date 21.4.2007 and issued the cheque to the complainant. The amount shown in the cheque was also written by the accused at the time of issuing of the cheque. Complainant presented the cheque for collection. But it was dishonoured for insufficient fund. Lawyer notice was issued to accused, but failed to repay the amount. Hence the complaint was filed. 4. On an analysis of the evidence the trial court found as follows: “On appreciation of the entire facts and circumstances in this case I feel that there is some merit in the contentions advanced by the accused. It is true that the complainant has succeeded in proving that Ext.P1 cheque was handed over by the accused at the time of entering into Ext.P8 contract. But the complainant himself would admit that the said cheque was handed over only as a security for repayment of the deposit made by the complainant with the accused. Even as per the case advanced by the complainant the execution of said cheque becomes complete only when the accused put date on Ext.P1 cheque after cancellation of the earlier agreement between the parties. But, it has come out in evidence Crl.L.P. No.919/10 3 that on cancellation of the agreement there were so many claims raised by the accused against the complainant. PW1 himself has admitted that the stock worth substantial amount belonging to the accused is still retained by the complainant. Under these circumstances, no prudent man may execute such a cheque without setting the rival claims. Considering the circumstances, I feel that the complainant should have adduced strict evidence to prove the execution of Ext.P1 cheque. Here the complainant himself is not able to give any details regarding the specific date on which the alleged execution became completed. Moreover the complainant has not produced any other documents evidencing the execution of such a cheque without setting the other claims. So, on appreciating the fact and circumstances of the case in this perspective I have no hesitation to hold that the complainant has miserably failed to prove the due execution of Ext.P1 cheque”. 5. I do not find any reason to reverse the above findings. Learned counsel for petitioner was also not able to substantiate why those findings are unsustainable. In the light of the above findings, order of acquittal can only be sustained. Hence there is no ground to grant leave. Petition is dismissed. K. HEMA, JUDGE. Sou.