IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH NOVEMBER, 2011 / 24TH KARTHIKA, 1933 Crl.L.P..No. 983 of 2011 ------------------------------ (AGAINST THE JUDGMENT IN CC.403/2007 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ,PATHANAMTHITTA) .................... PETITIONER/COMPLAINANT: ----------------------------------------- MULAMOOTTIL FINANCE CORPORATION, (wrongly mentioned in the Judgment as Mulamoottil Finance & Kuries), KOZHENCHERRY, REPRESENTED BY ITS PROPRIETOR, JACOB THOMAS, MULAMOOTTIL HOUSE, KOZHENCHERRY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS/ACCUSED AND THE STATE: -------------------------------------------------------------- 1. MANEESHA.S.NAIR, W/O.VINOD, THEKKETH HOUSE, CHIRAKKADAVU EAST.PO., KANJIRAPPALLY, PIN 686 520. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV. SRI.LIJI.J.VADAKEDOM FOR R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. FOR R2. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 983 of 2011 ---------------------------------------- Dated this the 15th day of November, 2011 O R D E R 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 in discharge of a legally enforceable debt issued a cheque a for Rs.90,000/- dated 11.11.2006 which when presented for encashment, dishonoured due to the reason funds insufficient and the accused has not repaid the amount in spite of statutory notice received by her. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the CRL.L.P.NO.983 OF 2011 :-2-: complainant approached the Judicial First Class Magistrate Court-I, Pathanamthitta wherein cognizance was taken and instituted C.C.No.403 of 2007. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P10 documents. From the side of the defence, DW1 was examined and no document is produced. Towards the conclusion of the trial, the trial court has found that the complainant has failed to prove the transaction and consequent execution of Ext.P2 cheque beyond the shadow of reasonable doubt and there are probable chances to believe that the complainant might have misused Ext.P2 cheque which was issued by the accused in a previous transaciton. On the basis of the above finding, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for under Section 378(4) of Cr.P.C. 3. Learned counsel for the petitioner vehemently submitted that the only reason stated by the learned Magistrate in rejecting the case CRL.L.P.NO.983 OF 2011 :-3-: of the complainant and acquitting the accused is that the complainant is aware of the fact that the accused and her husband were defaulters in a previous transaction which was known to the complainant at the time of alleged transaction and according to the learned Magistrate, such conduct of the complainant in lending money without considering their default on the earlier transaction can only be viewed with suspicion and considered the same as a doubtful transaction. It is further pointed out by the counsel for the petitioner that though notice was sent at the instance of the complainant, no reply was sent by the accused and parties were known to each other for several years and the learned Magistrate failed to consider the above aspects. Thus, according to the learned counsel, the finding of the learned Magistrate and the consequent acquittal of the accused are liable to be set aside. 4. I have carefully considered the arguments of the learned counsel for the petitioner and I have gone through the judgment of the trial court. In the light of the contention of the counsel for the petitioner/the complainant and the defence and the materials and CRL.L.P.NO.983 OF 2011 :-4-: evidence on record and particularly the findings of the court below, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255(1) of Cr.P.C. 5. The specific case of the complainant is that the accused, who is a lady, had availed of a business loan of Rs.90,000/- from the complainant by executing Ext.P8 promissory note on 11.11.2005 and in discharge of that debt, she had issued Ext.P2 cheque. Whereas the case of the defence is that the husband of the accused had a chitty transaction with Mulamoottil Finance and Kuries, the sister concern of the complainant and owned by the proprietor of the complainant. The chit amount was paid in favour of the husband of the accused for which the accused stood as a guarantor and at that time, she had issued Ext.P2 cheque and some other documents in its signed blank form as security for receipt of money in that chitty transaction. According to the accused, subsequently, there was some default in paying the chitty instalments and then, the foreman of the chitty had instituted a civil CRL.L.P.NO.983 OF 2011 :-5-: case before the Munsiff Court, Pathanamthitta as O.S.No.150/2006 in which the accused, her husband and her mother-in-law are impleaded as defendants. It is thereafter the complainant preferred the present complaint raising false allegations and making use of signed blank cheque issued in connection with the above said chitty transaction. It is relevant to note that the Managing Partner of the Mulamoottil Finance and Kuries is examined as DW1, who is none other than the proprietor of the complainant. DW1 had admitted that there was a chitty transaction between himself and the husband of the accused and the chitty was started on 1.4.2005 and the prized amount has been paid on 13.4.2005 and the husband of the accused became defaulter to the chitty transaction from 1.8.2005. DW1 has also admitted that at the time of prizing the chitty, the accused has executed a promissory note on her capacity as a surety for the chitty subscriber/the husband of the accused. DW1 has stated that he is personally aware of the accused and her husband had good relationship with them. Thus, from the evidence and materials on record, it can be seen that the CRL.L.P.NO.983 OF 2011 :-6-: complainant/firm is fully aware that the husband of the accused is a defaulter in chitty transaction between the husband and sister concern of the complainant, at the time of the alleged loan transaction. The case of the defence is that at the time when she stood as surety or guarantor, she had issued blank signed cheque and some other documents and it is the said cheque which is misused by the complainant. The learned Magistrate, who had occasion to assess the demeanour of parties, came into a conclusion, after considering the evidence and materials on record, that the cheque in question can be considered as one issued as security to the earlier chitty transaction. In the given facts and circumstances of the case, especially in the light of the evidence on record, according to me, the suspicion raised by the learned Magistrate regarding the veracity of the transaction claimed by the complainant appears to be correct. When the husband of the accused was a defaulter in the chitty transaction, it is quite unbelievable that a further amount of Rs.90,000/- is given as a loan to the accused, who is none other than the wife of the defaulter of the CRL.L.P.NO.983 OF 2011 :-7-: chitty transaction. From the above facts and circumstances, according to me, the defence has succeeded in making out a probable case and therefore, the finding of the court below that the complainant has miserably failed to prove the case beyond reasonable doubt appears to be correct. It appears that while considering the case, the court below has considered the decision of the Apex Court reported in John.K.John v. Tom Varghese and another [2007(2) KLD 471 (SC)] and found in favour of the defence in the light of such decision. In the light of the above decision and in the light of the facts and circumstances involved in the case, according to me, the finding of the court below is based upon the evidence and materials on record and the learned Magistrate refused to accept the case of the complainant by assigning cogent reasons. Therefore, according to me, this is not a fit case to grant leave as sought for in this petition since even if an appeal is entertained, there is no scope for any interference with the order of acquittal recorded by the trial court, especially when there is no perversity in the finding of the court below. CRL.L.P.NO.983 OF 2011 :-8-: In the result, this Criminal Leave Petition is dismissed as it is devoid of any merit. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.983 OF 2011 :-9-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.NO.983 OF 2011 :-10-: