IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Crl.L.P..No. 750 of 2011() -------------------------- AGAINST THE JUDGMENT DATED 31.5.2010 IN CC.12/2008 of J.M.F.C.-II, HARIPAD .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ SUJATHA RAJAN, W/O.RAJAN, AGED 48 YEARS, RAJ VIHAR, KATTACHIRA MURI, BHARANIKKAVU VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SMT.S.L.SYLAJA RESPONDENT(S): RESPONDENTS -------------------------- 1. LEKSHMI, W/O.NARAYANAN, AGED 60 YEARS, VRINDAVANAM CHEPPAD VILLAGE, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.A.SHAFEEK (KAYAMKULAM) FOR R1 PUBLIC PROSECUTOR SMT.LOWSY THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.750 of 2011 -------------------------------------------- Dated this the 20th day of October, 2011 ORDER The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this court u/s.378(4) of 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 u/s.255(1) of Cr.P.C. 2. The case of the complainant is that on 12.11.2002 the accused, who is a lady borrowed Rs.5,00,000/- from the complainant, who is also a lady, for her business purpose and on demand the accused towards the repayment of the said liability issued Ext.P1 cheque dated 20.1.2006, which when presented for encashment, dishonoured, on the ground of funds insufficient in the account of the accused and accused has not repaid the amount covered by the dishonour of cheque, in spite of a statutory notice. Thus, according to the complainant, the accused has committed the offence punishable u/s.138 of the NI Act and accordingly, CC No.12/2008 was instituted in the Judicial First Class Magistrate Court-II, Haripad. During the trial, PWs.1 to 3 were examined from the side of the Crl. L.P.NO.750 of 2011 2 complainant and produced Ext.P1 to P8 documents. DW1 was examined from the side of the defence and Ext.D1 to D5 were produced as defence exhibits. Beside the above, Exts. X1 to X3 are also marked as exhibits for witness. After considering the entire evidence and materials, the trial court has found that the evidence adduced by the complainant creates doubt with respect to the entire transaction and it is lacking bonafide. Further, according to the learned Magistrate, the transaction alleged by the complainant and evidence adduced by the defence improbablise the case of the complainant and the case of the accused is more probable. According to the learned Magistrate such probable defence case would show that some cheques which were happened to be in the custody of DW1, presented in the present case, through the complainant. Thus, according to the learned Magistrate, the complainant has miserably failed to establish that the accused has issued Ext.P1 cheque in discharge of a legally recoverable debt. Consequently, the accused is acquitted u/s. 255(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged by filing an appeal and therefore, the petitioner seeks leave of this court u/s.378(4) of Cr.P.C. Crl. L.P.NO.750 of 2011 3 3. I have heard Smt. S.L.Sylaja, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that, the evidence of Pws.1 and 2 intact and those evidence are sufficient to prove the transaction between the complainant and the accused, especially when the accused has admitted her signature in Ext.P1 cheque. It is also pointed out by the learned counsel that there were frequent transaction between the complainant and the accused and the transaction which is the subject matter of the present case is the last one and the amount borrowed by the accused on previous occasions were repaid by the accused as it is evident from the deposition of Pws.1 and 2. Thus, according to the learned counsel, the findings of the court below and the order of acquittal is illegal and improper and against the evidence on record. In the light of the above submission of the learned counsel and in the light of the findings of the court below based upon the materials and evidence referred to in the above judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave u/s.378(4) of Cr.P.C. Crl. L.P.NO.750 of 2011 4 5. The specific case of the complainant is that the accused borrowed Rs.5,00,000/- on 12.11.2002 and towards the discharge of the said liability the accused issued Ext.P1 cheque after nearly 5 years that on 21.1.2006, which was dishonoured, for want of sufficient fund. Whereas, the specific case set up by the accused is that Ext.P1 cheque is the one which happened to be in the possession of DW1, namely one Vijayan who managed to file the present case against the accused through the complainant herein, and the accused denied the entire transaction between the complainant and the accused as claimed by the complainant and she had also denied the execution and issuance of the cheque in favour of the complainant. While considering the evidence and materials on record, and by assigning numerous reasons as seen in paragraphs 12 and 13 of the judgment of the learned Magistrate, the learned Magistrate refused to accept the case of the complainant and disbelieved the transaction claimed by the complainant. I am not proposed to repeat the reasons given by the learned Magistrate. In the present case, regarding the transaction claimed by the complainant absolutely, there is no independent evidence, other than the interested version of the complainant herself and her Crl. L.P.NO.750 of 2011 5 husband, who were examined as Pws.1 and 2. It is brought on record as referred by the learned Magistrate, as far as the complainant is concerned an amount of Rs.5,00,000/- is not a meagre amount, but there is no documentary evidence to show the transaction and admittedly, no security was obtained from the accused for the repayment of the said amount. It is also admitted fact that no interest is demanded from the accused for such huge amount, though Ext.P1 cheque was claimed to have issued by the accused after a period of 5 years from the date of the borrowal of the amount as claimed by the complainant. Nothing is brought on record to justify the abandoning of interest for such a long period for such a huge amount. The other details, I am not inclined to consider at this stage. So, there is no cogent and satisfactory evidence in support of the claim of the complainant with respect to the transaction which, she claimed in the complaint. On the other hand, the specific case set up by the defence is to the effect that DW1, one Vijayan managed to get certain cheques from the accused and he had also filed a case against the accused as ST No.343/2006 and Ext.P1 cheque is the one, which was in the possession of the said Vijayan. In paragraph 15 of the judgment of the trial court, the Crl. L.P.NO.750 of 2011 6 learned Magistrate has elaborately considered the defence version, and the evidence including the documentary evidence. When PW3 was examined, according to the learned Magistrate, he had admitted that Ext.D2 is the certified copy of Ext.P2 and according to the learned Magistrate, the meticulous examination of Ext. X1,X2, D2 and P2 documents would reveal that 3 cheques bearing Nos.18375, 17708 and 18376 were dishonoured by Alappuzha District Co-operative Bank, Muthukulam Branch on the very same date that on 15.3.2006. It is specifically found that in Ext.P2 document other cheque numbers were seen darken and in Ext.D2, these documents were mentioned on its top. Thus, one of the cheques mentioned in Ext.P2 document in ST.No.343/2006 was filed by DW1 against the accused. It is specifically found that another cheque mentioned in Ext.D2 document is produced in this case, by the complainant, i.e., Ext.P1 herein. So, on the basis of the above scrutiny of documents and findings, the learned Magistrate has concluded that the oral testimony of PW3, Exts.X1, X2,D2 and P2 documents probablise the case of the accused that one of the cheques that was in the custody of one Vijayan is produced in this case through the complainant. I find the above conclusion of Crl. L.P.NO.750 of 2011 7 the learned Magistrate is absolutely correct and supported by the materials available on record. In the light of the draw backs which pointed out in the forgone paragraph and that mentioned in the impugned judgment, coupled with the defence evidence would show that the cheque in question is the one which was in the possession of DW1 and the above fact itself is sufficient to hold that Ext.P1 is not executed and issued by the accused in favour of the complainant connected with the transaction claimed by the complainant. Therefore, according to me, there is no merit in this petition, so as to grant leave as sought for in this case, because the findings and the order of acquittal recorded by the learned Magistrate is based upon the materials on record and the conclusion and findings of the learned Magistrate is well founded and there is no scope for any interference with the same, even an appeal is entertained. In the result, there is no merit in this leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/