IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 Crl.L.P..No. 460 of 2011() -------------------------- CC.370/2009 of J.M.F.C.-II, ALAPPUZHA .................... PETITIONER/COMPLAINANT ------------------------------------------ KURIAKOSE EAPEN, S/O.EAPEN KURUVILA, KALATHIL HOUSE, SANATHANAPURAM P.O., ALAPPUZHA-688003. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. MOHANDAS M., APARNA, (OPPOSITE OF SREE DEVI AUDITORIUM), PUNNAPRA P.O., PUNNAPRA, ALAPPUZHA-688004. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ADV. SRI.B.PRAMOD FOR R1 R2 BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P. No. 460 of 2011 ---------------------------------------- Dated the 11th day of August, 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 the Cr.P.C. 2. The case of the complainant is that the accused borrowed a sum of Rs.1,10,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 5.2.2009 which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the amount covered by the cheque was not paid in spite of a formal demand notice served on the accused and therefore, according to the complainant , the accused has committed the offence under Section 138 of the NI Act and with the said allegation, by filing a complaint, the complainant approached the court of Judicial First Class CRLP 460/11 2 Magistrate-II, Alappuzha wherein cognizance was taken for the said offence and instituted C.C No.370/2009. During the trial, the complainant himself was examined as PW1, and in addition to that, his own brother in law was examined as PW2. Besides the above, the complainant has also produced Exts.P1 to P5 documents, among which Ext.P1 is the cheque in question and other documents are with respect to the dishonour of the cheque and statutory demand. Though no document is produced, the accused himself was examined as DW1. The trial court after consideration of the entire materials and evidence on record, has categorically found that it is not safe to conclude that the accused issued Ext.P1 cheque to PW1 in discharge of a legally enforceable debt. On the basis of the above finding, the trial court has further found that the accused is not guilty under Section 138 of the N.I.Act and he is acquitted under Section 255 (1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged in this court by way of appeal for which the petitioner seeks leave of this court under section 378 (4) Cr.P.C. 3. I have heard Sri C.S. the learned counsel for the petitioner and I have also perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that the findings of the learned Magistrate is unsustainable because there CRLP 460/11 3 is no proper appreciation of evidence and materials and also the contention raised by the petitioner/complainant. The learned counsel further submitted that in the light of the facts and circumstances involved in the case, virtually, the defence had accepted the case of the complainant and the said fact can be gathered from the fact that no reply was given by the accused to the statutory notice sent by the complainant. It is also the submission of the learned counsel that the accused has not proved the defence version by adducing any cogent evidence. It is also the submission of the learned counsel that so long as the accused has not disputed the signature that contained in Ext.P1 cheque, the learned Magistrate ought to have held that the cheque in question was duly executed by the accused and the same was issued towards the discharge of the liability due to the complainant. In the light of the arguments advanced by the learned counsel for the petitioner and the findings of the court below, the question to be considered is whether the petitioner has succeeded in making out a case to grant special leave under section 378(4) Cr.P.C. The specific case of the complainant is that the accused has borrowed a sum of Rs.1,10,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 5.2.2009. The specific plea of the defence is to the effect CRLP 460/11 4 that the accused is a retired school master and that he had borrowed a sum of Rs.75,000/- from the complainant and repaid only Rs.60,000/- and according to him, he could not pay the balance amount because of his heart disease. The trial court has found that the complainant has miserably failed to prove that Ext.P1 cheque was executed and issued by the accused towards the discharge of the liability of the amount as shown in Ext.P1 cheque. The learned Counsel for the petitioner submitted that the evidence of PW1 is sufficient to show the liability due to the complainant and the evidence of PWs 1 and 2 are sufficient to hold that the cheque in question was executed and issued by the accused. 5. The learned Magistrate refused to accept the above contention. In paragraph 9 of the judgment , the learned Magistrate has examined and discussed the evidence of PW1 and also discussed the evidence of the defence. It is to be noted that as referred to above, to show the transaction, except the evidence of PW1 and the evidence of PW2 , who is none other than the brother in law of PW1, there is no other independent evidence or any contemporary document. According to PW1, on demand from the side of the complainant, the accused and his friend approached PW1 and it was the friend of the accused who made CRLP 460/11 5 the entries in Ext.P1 cheque and according to PW1, the accused did not take spectacles on that day and thus it was the accompanying person made the endorsement in Ext.P1 cheque. The learned trial Magistrate has also found that, according to PW1, the accused had put his signature in the cheque without spectacles. While appreciating the evidence of PW1 regarding the execution of the cheque , the learned Magistrate himself has held that PW1 had no specific answer for not showing his name as payee in Ext.P1 cheque. During the course of argument, the learned counsel for the petitioner, in answer to the above question, it is submitted that the complainant was not aware of the details of the endorsement in the cheque and came to know about that only after getting the cheque leaf in his hand. I am unable to accept the above explanation. Another witness cited by PW1, the complainant, is none other than his brother-in-law, PW2. The learned Magistrate has observed that, according to PW2 , who is the brother in aw of PW1, PW2 was present when the accused borrowed Rs.1,10,000/- from the complainant and had deposed that the accused handed over Ext.P1 cheque to PW1 at the house of PW1. According to the learned Magistrate, PW2 has also deposed that it was the other person, who accompanied the accused, made entries in Ext.P1 cheque. The learned Magistrate CRLP 460/11 6 further pointed out that PW2 does not know whether the name of PW1 was written in the cheque. When DW1, the accused was examined, he had stated that he usually wears spectacles and without spectacles, he cannot read or write. Regarding the source of income of the complainant, there is also some doubt which is discernible from the discussion of the learned Magistrate that contained in paragraph 11 of the judgment. From the above facts and discussion, it can be seen that the complainant has miserably failed to prove that any legally enforceable debt is due to the complainant out of the transaction claimed by himself and there is no cogent evidence to show that Ext.P1 cheque was executed and issued by the accused as claimed by the complainant. The trial court who got the opportunity to assess the demeanor of the parties to the proceedings after having appreciated the evidence and came to the conclusion that there is some unconnected and concocted lines in the prosecution story and the defence version is more probable and acceptable. In the light of the above facts and discussion, I am of the view that the learned Magistrate is fully justified in his finding that the complainant has miserably failed to prove that the accused had executed and issued Ext.P1 cheque to PW1 in discharge of a legally enforceable debt. If that be so, according to me, there is CRLP 460/11 7 no scope for any interference with the findings of the learned Magistrate even in the event of an appeal is entertained and theres is no scope for any interference with the order of acquittal so as to disturb the double presumption of innocence available in favour of the accused as there is no substantial or compelling reason for the same, in the light of the findings and acquittal recorded by the learned Magistrate. Hence, there is no merit in the petition. In the result, this Crl.Leave Petition is dismissed declining leave to file appeal under section 378(4) of Cr.P.C. V.K.MOHANAN, JUDGE kvm/- CRLP 460/11 8