IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 3RD NOVEMBER, 2011 / 12TH KARTHIKA, 1933 Crl.L.P..No. 926 of 2011 ------------------------------ (AGAINST THE ORDER DTD.17.8.2011 IN ST.1140/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KOCHI ) .................... PETITIONER/COMPLAINANT: ------------------------------------------ M/S BELL LEASING AND HIRE PURCHASE LTD. DOOR NO.40/9715, 1ST FLOOR, BHAGEERATHA SANTHWANA, CHITTOOR ROAD, KOCHI-18, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER JAYAPRAKASH.N. BY ADV. SRI.P.N.MOHANAN RESPONDENTS(S): RESPONDENTS/ACCUSED --------------------------------------------------------------- 1. BIJU.A., S/O.ABU SALI, BIJU MANZIL, THODIYOOR.P.O., KARUNAGAPPALLY, KOLLAM, PIN-690518. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.LOWSY. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSIONON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 926 of 2011 ---------------------------------------- Dated this the 3rd 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 complainant is a registered company with its registered office at Ernakulam and is engaging in the business of hire purchase and lease of vehicles and according to the complainant, during the course of business, the accused approached the complainant to purchase a vehicle and executed a hire purchase agreement No.2462 in favour of the complainant and purchased a new Yamaha Crux Bike. Thereafter, the CRL.L.P.NO.926 of 2011 :-2-: accused defaulted in paying the monthly instalments and after repeated requests to clear the dues, the accused issued Ext.P1 cheque dated 4.8.2006 for an amount of Rs.54,000/-, towards the full and final settlement of the hire purchase account and when the said cheque is presented for encashment, dishonoured due to insufficient fund in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque and therefore, the accused has committed the offence under Section 138 of the N.I.Act. With the above allegation, the complainant approached the Chief Judicial Magistrate Court, Ernakulam, by filing a complaint, wherein cognizance was taken for the offence under Section 138 of the N.I.Act and instituted S.T.No.2277 of 2006 and subsequently, the case was transferred to Judicial First Class Magistrate Court-I, Kochi and the case is renumbered as S.T.No.1140 of 2007. During the trial, PW1 was examined for and on behalf of the complainant and Exts.P1 to P9 documents were produced. Though no defence exhibit was produced, CRL.L.P.NO.926 of 2011 :-3-: Dws.1 and 2 were examined from the side of the defence. After considering the entire evidence and materials, the trial court has found that the complainant has not succeeded in proving that Ext.P1 cheque was issued in discharge of a legally enforceable liability and further found that the accused has not committed the offence under Section 138 of the N.I.Act and consequently, he 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 the petitioner approached this Court by filing the above Crl.L.P. with the prayer for leave of this Court. 3. I have heard Sri.P.N.Mohanan, learned counsel appearing for the petitioner and I have perused the judgment which is sought to be impugned. 4. The trial court opted to accept the case of the accused mainly believing the deposition of DW2, from whose showroom the accused purchased Yamaha Crux Bike. The details connected with Ext.P9 hire CRL.L.P.NO.926 of 2011 :-4-: purchase account have been thoroughly dealt with in paragraph 10 of the impugned judgment and thereafter, the learned Magistrate has held that it is quite unbelievable that a hirer without any demand notice would issue a cheque for the defaulted instalments plus interest after termination of the instalment period that too after two years of the termination of the agreement period. On the basis of such materials and other evidence, the learned Magistrate has held that the accused has succeeded in rebutting the presumption available in favour of the complainant. But, the counsel for the petitioner vehemently submitted that the vehicle in question was purchased by the accused on the basis of Ext.P8 hire purchase agreement and when the above amount became due and on demand from the side of the complainant, the accused issued Ext.P1 cheque and according to the learned counsel, the evidence of PW1 and other documents would show that the accused issued Ext.P1 cheque after its due execution towards the discharge of the legally enforceable debt due to the complainant. CRL.L.P.NO.926 of 2011 :-5-: 5. In the light of the above submission of the learned counsel for the petitioner and in the light of the finding of the court below, based upon the materials referred to in the judgments sought to be impugned, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave to file an appeal against the above judgment of the trial court. 6. Though the specific case of the complainant is that the accused purchased the vehicle from the company on the basis of Ext.P8 hire purchase agreement and on default from the side of the accused, as demanded by the complainant, the accused issued the cheque in question whereas the specific case set up by the accused to the effect that he had no dealings with the complainant and he had purchased the vehicle from the showroom of DW2. It is the further case of the accused that when he purchased the vehicle in question, by availing finance, he had given a blank signed cheque to one Aji at the time of purchase of the vehicle from the showroom of DW2. The CRL.L.P.NO.926 of 2011 :-6-: above claim of the accused appears to be substantiated through the evidence of DW2, the owner of the showroom. When DW2 was examined, he had deposed that one person viz., Aji was a franchisee of the complainant/company used to provide finance to the customers who purchased the vehicle from the showroom of DW2. DW2 has also deposed that he received the purchase amount of vehicle by demand draft issued by Bell Leasing Company. Consequently, the trial court has found that there is no reason to disbelieve the testimony of DW2 that the accused purchased the vehicle from his showroom by availing finance from the complainant/company through Aji. The above finding is based upon the concrete evidence adduced by the accused through DW2. Whereas though the complainant has stated in the complaint that the accused approached the complainant to purchase the vehicle and executed hire purchase agreement No.2462 in favour of the complainant, there is no positive evidence in this regard. The learned Magistrate has found that when PW1 was CRL.L.P.NO.926 of 2011 :-7-: examined, he has no case that Ext.P1 cheque was signed and written by the accused in his presence. So, absolutely there is no evidence to show that the accused has executed and issued the cheque in favour of the complainant as claimed by the complainant. As I indicated earlier, the finding of the learned Magistrate that the accused has succeeded in rebutting the presumption is also correct in the light of the facts stated in paragraph 10 of the trial court judgment. From the above discussion and materials referred to above, it can be seen that the complainant has miserably failed to prove the case, particularly the transaction between the complainant and the accused as claimed by the complainant and also the execution and issuance of Ext.P1 cheque in favour of the complainant. That being the position, according to me, this is not a fit case to grant leave so as to challenge the above judgment of the trial court. The learned Magistrate, after his judicial scrutiny of the materials and evidence by assigning proper reason, found that the complainant has not succeeded in proving all the CRL.L.P.NO.926 of 2011 :-8-: necessary ingredients of the offence under Section 138 of the N.I.Act. Therefore, even if an appeal is entertained, in the absence of any irregularity or illegality or perversity with respect to the findings of the court below, there is no scope for any interference with the order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed as the same is devoid of any merit. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.926 of 2011 :-9-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.P.NO.926 of 2011 :-10-: O R D E R Dated:2. ..2011