IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 Crl.L.P..No. 799 of 2011() -------------------------- CC.809/2009 of J.M.F.C., KODUNGALLUR .................... PETITIONER/COMPLAINANT -------------------------------------------- ABDULLAKKUTTY, S/O.MOHAMMED, PANICKASSERY KADAVIL HOUSE, EDATHURUTHY VILLEGE, CHULLUR DESOM, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.I.SAGEER RESPONDENT: ACCUSED AND STATE --------------------- 1. NAJUMUDHEEN, S/O.MOHAMMED, PUYUVEETTIL HOUSE, EDASSERY DESOM, THALIKULAM VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. LALIZA THIS CRIMINAL LEAVE PETITION HAVING BEEN COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 799 of 2011 ---------------------------------------- Dated the 28th day of October, 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 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 Cr.P.C. 2. The case of the complainant is that the accused issued a cheque for Rs.5 lakhs dated 25.5.2006, in favour of the complainant towards the discharge of a legally enforceable debt, which when presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused and the accused has not repaid the amount in spite of a statutory notice and therefore the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. On the basis of the complaint preferred by the petitioner/complainant, cognizance was taken for the said offence and instituted C.C.No.809/2009 in the court of Judicial CRLP 799 OF 2011 2 First Class Magistrate, Kodungallur and during the trial, the complainant himself was examined as PW1 and produced Ext.P1 to P6 documents. From the side of the defence, DWs 1 to 4 were examined and produced Ext.D1. The trial court finally found that Ext.P1 cannot be treated as cheque issued by the accused in favour of the complainant towards a legally enforceable debt as PW1 has failed to establish existence of such legally enforceable debt and he had also failed to establish the execution and issuance of Ext.P1 cheque. It is on the basis of the above finding, the trial court acquitted the accused. The present petition is filed seeking leave of this Court to challenge the above finding and order of acquittal by way of filing an appeal. 3. I have heard Sri K.I. Sageer Ibrahim, the learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. After consideration of the entire materials and evidence, the trial court is of the opinion that the transaction claimed by the complainant is unbelievable and doubtful. Counsel for the petitioner vehemently submitted that the CRLP 799 OF 2011 3 learned Magistrate is wrong in his finding that the complainant has no sufficient income so as to approve the transaction as claimed by the complainant. It is further submitted by the learned counsel that the learned Magistrate erroneously accepted the version of the defence without proper appreciation and scrutiny of the evidence. DW4 and the accused are partners and therefore, the evidence of DW4 cannot be believed. The learned counsel has also pointed out that when DW4 was examined in another case, he had deposed that he was not usually taking cheque leaves as security for the transaction but in the present case, in order to save the accused, he had deposed that the cheque was obtained as security. Thus according to the learned counsel, the finding of the court below is not factually and legally correct and there is every possibility to interfere with the same in case an appeal is entertained. 5. In the light of the arguments advanced by the counsel for the petitioner and in the light of the findings of the court below on the basis of the materials and evidence referred to therein, the question to be considered is whether the petitioner CRLP 799 OF 2011 4 has succeeded in making out a case so as to grant leave under section 378(4) Cr.P.C. 6. On a scanning of the judgment of the trial court, especially in paragraph 8, the learned Magistrate has stated the evidence of PW1/complainant. According to the complainant he was engaged in cattle business and was having a maximum income of Rs.3000/- in a week and he was having bank account for the last two years but he had admitted that at the time when he gave the amount to the accused, he was not having any bank account. He had also stated that during the year 2003, the property, where the cattle farm was conducted, having an extent of 16 cents, was sold for Rs.32 lakhs and he had obtained ¼ share of the said amount and he paid the amount to the accused on 18.5.2006. According to him, he had also sold his vehicle for a value of Rs.2,15,000/- According to PW1, the accused borrowed the amount for purchasing a vehicle and offered that the amount would be repaid within one week. According to PW1, no document was obtained while parted with such a huge amount. It is also the deposition of PW1 that the accused brought the cheque after CRLP 799 OF 2011 5 writing the contents and signed the cheque in his presence. The case put up by the accused is that he had borrowed an amount of Rs.25,000/- from one Kozhiparambil Finance conducted by one Anilkumar and the amount was borrowed in the year 1998 and Anil Kumar was the business partner of the accused and at the time of borrowing the amount the accused had entrusted a blank signed cheque with the said Anil Kumar. It is the further case of the accused that one of his relatives , namely one Majeed had received a sum of Rs.3,50,000/- from the above said Financial institution and the cheque entrusted with the said institution was misused by the complainant and instituted the present case. The accused has also filed a detailed statement under section 313 Cr.P.C. The learned Magistrate considered the same in paragraph 10 of his judgment and in paragraphs 10 to 12, the learned Magistrate has considered the evidence of the defence. After considering the evidence of defence, the learned Magistrate is of the opinion that there is some substance in the defence set up by the accused. In this juncture, it is relevant to note that DW2 has admitted that he has worked as manager in the CRLP 799 OF 2011 6 Kozhiparambil Enterprises at Thalikulam and he knows Majeed S/o. Mohammed residing at Thalikulam but he denied that he had given a cheque belongs to the accused to Majeed from Kozhiparambil Finance. DW3 has deposed that the complainant is known to him as he is his relative. But DW3 has denied that he has received Rs.3,50,000/- from Kozhiparambil Finance of the said Anilkumar. But DW3 has admitted that the said Anilkumar has instituted two cases against him before the Irinjalakuda court for realising an amount of Rs.2 ½ lakhs and Rs.1 lakh respectively on the basis of two cheques. He had also admitted that in the above cheque cases, the judgment was in favour of Anilkumar and against DW3. But DW3 has also denied the suggestion that he had given a cheque of the accused entrusted with Kozhiparambil Finance to DW2. 7. It is in the above backdrop of the above defence version and evidence, the learned Magistrate considered the veracity and genuineness of the case of the complainant. The learned Magistrate has elaborately considered the case of PW1 in paragraph 13 of his judgment and according to me, CRLP 799 OF 2011 7 the reason assigned by the learned Magistrate to disbelieve the case of the complainant appears to be correct and justified especially, in the light of the facts and circumstances involved in this case. According to me as far as the complainant is concerned, who was conducting a cattle farm along with other partners, Rs.5 lakhs is a substantial amount but no security or document is obtained from the accused when he allegedly gave Rs.5 lakhs to the accused. Though the learned counsel for the petitioner vehemently submitted that the cheque was given when the amount was received, PW1 has no such claim. The evidence of PW1 is not sufficient to hold that there was that much strong relationship between the complainant and the accused so as to part with such a huge amount of Rs.5 lakhs without any security. The defence version supported by the defence appears to me more probable. So the reason given by the learned Magistrate to disbelieve the version of PW1 is fully justified and correct. 8. The learned Magistrate has also found that PW1 has claimed that he paid an amount of Rs.5 lakhs on 18.5.2006 and he was having ready cash. But according to PW1, his main CRLP 799 OF 2011 8 source of money is that of the share which he obtained from the cattle farm which was sold out in the year 2003. So there is a gap of 3 years from the date of sale of the cattle farm and the borrowal of the amount by the accused as claimed by the complainant. Though PW1 during cross examination has stated that the amount was given on 18.5.2006, the learned Magistrate has found that there is no such allegation either in the proof affidavit or in the complaint. The above evidence of PW1 when examined in the backdrops of the defence and the defence evidence, according to me, the learned magistrate is fully justified in disbelieving the case of the complainant/PW1. Thus according to me, this is not a fit case to grant leave under section 378(4) Cr.P.C so as to file appeal against the judgment of the trial court. In the light of the findings of the trial court based upon the evidence and materials on record, according to me, even if an appeal is entertained, there is no scope for any interference with the finding and it cannot be said that the order of acquittal recorded by the learned Magistrate is perverse, illegal or incorrect so as to interfere with such acquittal. CRLP 799 OF 2011 9 In the result, there is no merit in this petition and accordingly, the same is dismissed declining leave under section 378(4) Cr.P.C V.K.MOHANAN, JUDGE kvm/- CRLP 799 OF 2011 10