IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.L.P..No. 952 of 2010() ------------------------------------- CC.55/2007 of J.F.C.M.-I, PERUNTHALMANNA .................... PETITIONER: COMPLAINANT --------------------------------------------- E.K.ABDUL LATHEEF, S/O. LATE E.K. KUNJUMUHAMMED, EDATHODY KAKKASSERY HOUSE, POST MOORKKANADU, VIA KULATHOOR, MALAPPURAM DISTIRCT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): ACCUSED/STATE ------------------------------------------------------- 1. P.KAMMAD, S/O. LATE MAMMIKUTTY, PARAMBIL HOUSE, ONGALLUR, POST KALLADYPATTA, PATTAMBI, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. M.R VENUGOPAL THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.L.P.No.952 OF 2010 ----------------------------------- Dated this the 23rd day of September, 2010 O R D E R This petition is for special leave to file appeal against acquittal. 2. The petitioner filed a complaint against first respondent herein, alleging offences under section 138 of Negotiable Instruments Act, on the allegation that Rs.2,00,000/- was borrowed by accused from the complainant and that he promised to repay the amount in six months. When he demanded the money back, he evaded payment and later issued a cheque dated 16.9.2006 for Rs.2,00,000/. The cheque was dishonoured and after complying with legal formalities complaint was filed. 3. After analysing evidence on record, trial court acquitted accused holding that complainant has not succeeded in proving that Ext.P1 cheque was issued to complainant. The debt or liability on the alleged transaction is not proved by adducing satisfactory evidence. Trial court has given sufficient reasons to come to such finding. It was found on analysis of evidence in chief and cross examination of PW1 that date of borrowal of Crl.L.P. No.952/10 2 amount is not stated. From the evidence of PW1 itself it will be clear that there is inconsistency regarding borrowal. 4. The trial court observed that in the cross examination, PW1 stated that at about two years ago, the amount was borrowed, after promising to repay the same within six months. After expiry of said six months, complainant approached accused and demanded to repay the sum and Ext.P1 cheque was issued on 16.9.2006. According to trial court, if the above version is accepted, the amount would have been given to complainant much prior to execution of cheque, Ext.P1. 5. However, PW1 adduced in cross examination, the amount was borrowed only on 16.9.2006, on the date on which cheque was issued, promising to pay the amount within six months. If that be so, even before the expiry of six months, he presented the cheque and there was no explanation for such presentation. The evidence given by PW1 in the chief examination and cross examination are inconsistent, regarding the date on which, the amount was paid. The court also observed that the cheque was returned dishonoured for the reason that ‘ Account does not exist’ . 6. But cheque was again presented to the same bank and it Crl.L.P. No.952/10 3 was definitely for the purpose of overcoming the period of limitation. There is no explanation for the complainant on this aspect also. The defence counsel had cited the decision reported in 2008 (2) KLT 851 to argue that whenever cheque is dishonoured on the ground of account closed or signature does not tally with specimen, payee cannot resort to successive presentation to save limitation. For all these reasons, trial court found that the complainant did not prove his case by adducing satisfactory evidence. 7. Learned counsel for petitioner submitted that there was only slip of tongue and amount involved is Rs.2,00,000/-. Therefore, leave may be granted. On going through the order under challenge and on hearing learned counsel for petitioner, I do not find any reason to grant leave in a case of this nature. Petitioners counsel was not able to substantiate that findings are wrong or unsustainable. Hence I do not find any reason to grant leave to appeal. This petition is dismissed. K. HEMA, JUDGE. Sou.