IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.L.P..No. 677 of 2011() -------------------------- CC.105/2004 of J.M.F.C.,CHAVAKKAD .................... PETITIONER/COMPLAINANT ------------------------------------------ DILEEP, S/O. SREEDHARAN, ITHIKKATT HOUSE, VATANAPPILLY VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.RAJIT RESPONDENTS: STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. BABU, S/O. KOCHUNNI, KUNNAMBULLY HOUSE, KANHANI DESOM, ANTHIKKAD, CHAVAKKAD TALUK, THRISSUR DISTRICT. ADV. SRI.P.RAMACHANDRAN FOR R2 R2 BY PUBLIC PROSECUTOR SRI P.RAMACHANDRAN THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P. No. 677 of 2011 ---------------------------------------- Dated the 5th 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 sort 'the Cr.P.C.) to file an appeal against the order of the trial court by which the learned Magistrate, acquitted the accused under section 255(1) of Cr.P.C. 2. Heard Sri Rajith, the learned counsel appearing for he petitioner. 3. The case of the complainant is that, out of the friendship, the complainant had given a sum of Rs.75,000/- to the accused and when he demanded back the same, the accused issued the cheque in question which when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused and the cheque amount was not paid in spite of the formal demand and therefore, according to the complainant, the accused has committed the offence punishable under section 138 of the N.I.Act. With the above allegation, by filing a complaint, he approached the court of Judicial First Class Magistrate, Crl.L.P.677/11 -2- Chavakkad and the court took cognizance for the said offence upon the above complainant and instituted C.C.No.105/2004. During the trial of the above case, the complainant himself was examined as PW1 and produced Exts.P1 to P5 document. Though no witness was examined from the side of the defence, Exts.D1 and D2 documents were produced. After having considered the above materials and the evidence on record and after having considered the settled legal position, the trial court came into a conclusion that the evidence of PW1 regarding the lending of money and issuance of cheque by the accused is highly unbelievable and it is not possible for the court to come to a conclusion that the cheque was issued towards the discharge of a legally recoverable debt or liability. On he basis of the above finding, the court below has found that the accused is not guilty for the offence under section 138 of the NI Act and accordingly, he is acquitted. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which special leave of this court sought under section 378(4) Cr.P.C. 4. I have heard Sri Rajith and also perused the judgment of the court below. 5. The learned counsel for the petitioner vehemently submitted that the findings of the curt below is not in accordance with the materials Crl.L.P.677/11 -3- and evidence available on record. It is further submitted that instead of considering the fact that whether the cheque in question was issued by the accused towards the discharge of the liability, the court below mistakenly considered the capacity or source of the complainant to gave such amount to the accused. Thus, according to the learned counsel, the findings of the trial court is on an erroneous consideration of legal and factual case involved in the case. 6. In the light of the above pleadings of the counsel for the petitioner and in the light of the evidence and materials referred to by the learned Magistrate, as discernible from the order impugned and in the light of the findings of the trial court, the question to be considered is whether the petitioner has succeeded in making out a case to grant leave under section 378(4) as sought for. 7. On a close perusal of the entire judgment, it can be seen that the specific contention taken by the accused is to the effect that there was no transaction between the accused and the complainant, as claimed by the complainant and the cheque in question is the one which entrusted with one 'Aiswarya Finance' of which the petitioner was a partner, when the accused have chitty transaction with the said finance institution and the said cheque was misused by the complainant to Crl.L.P.677/11 -4- launch this prosecution. The learned counsel read over to me the complaint and also the affidavit filed in lieu of the chief examination. In these documents there is no averment or assertion of facts which led to the giving of Rs.75,000/- to the accused other than the bare claim that the accused is his friend. But during cross examination, PW1, the complainant had admitted that he was a partner of Aiswarya Finance wherein the accused had a chitty transaction. According to PW1, he had admitted that the accused had subscribed chitty and auctioned the same . PW1 during cross examination further deposed that he has got acquaintance with accused and the accused used to come to the financial institution regularly. He had also admitted that he has no other connection with the accused. So regarding the transaction and availing of Rs.75,000/-, there is no other evidence. During the cross examination it is brought on record that he was not having that much financial capacity to release Rs.75,000/- during the period which the complainant has claimed to have released the amount to the accused. I am not proposed to reiterate the details mentioned in paragraph 10 of the judgment to assess the financial capacity of the complainant. So after having considered the above factual position, particularly, the financial capacity of the complainant at the alleged time , and in the absence of any Crl.L.P.677/11 -5- evidence or materials to show the transaction, the trial court came into a conclusion that the claim, evidence and regarding the lending of money is unbelievable. According to me, the above factual finding is based upon cogent reasons assigned by the learned Magistrate. In the light of the above facts and evidence, I am of he view that even if an appeal is entertained, there is no scope for any interference with the finding of the learned Magistrate and also to interfere with the order of acquittal recored by the learned Magistrate under section 255(1) Cr.P.C. Thus according to me, the petitioner has miserably failed to make out a case to grant special leave under section 378(4) Cr.P.C. In the result, there is no merit in this Leave petition and accordingly, the same is dismissed declining the request for special leave. V.K.MOHANAN, JUDGE kvm/- Crl.L.P.677/11 -6- kvm/-