IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.L.P..No. 580 of 2008() -------------------------- CC.1591/2005 of J.M.F.C.-I, KASARAGOD .................... : PETITIONER/COMPLAINT:- --------------------------------------- K.S. RAMACHANDRA BHAT, AGED 55 YEARS, S/O SUBRAYA BHAT, VAGETABLE MERCHANT, NULLIPADY, KASARGOD. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA RESPONDENTS: ------------- 1. K.S. SADANANDA, AGED 40 YEARS, S/O K.B.KITTU, VEGETABLE MERCHANT, VYAPARI BHAVAN, NEAR MARUTHI GAS AGENCIES, KASARGOD. 2. P.A. MOHAMMED HANEEFA, S/O P. ABDULLA, RAM DAS NAGAR, KASARGOD. 3. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR GIKKU JACOB THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.L.P. No.580 of 2008 ------------------------------------- Dated this the 25th day of June, 2008 ORDER This application is for leave to appeal under Section 378 (4) Cr.P.C. A private complaint filed by the appellant/complainant initially under Section 138 of the Negotiable Instruments Act and later altered to Section 420 I.P.C was dismissed and the accused persons were acquitted by the impugned judgment of acquittal. 2. Initially the complainant alleged that the 1st accused had issued Ext.P1 cheque for Rs.4,07,000/- for the due discharge of a legally enforcible debt/liability. The same was dishonoured. Notice of demand was issued. To the notice of demand, the 1st accused submitted a specific reply that no such cheque was given by him to the complainant. When the Bank manager was examined as PW1 it was revealed that Ext.P1 cheque was not written on a cheque leaf issued to the 1st accused to operate his account. It was found that the said cheque was drawn on an account maintained by the 2nd accused who happened to be a former employee of the 1st accused. Realising that the prosecution under Section 138 may not lie, prayer was made that the 2nd accused may be brought on the array of accused as an Crl.L.P. No.580 of 2008 2 additional accused under Section 319 Cr.P.C after altering the charge from Section 138 of the Negotiable Instruments Act to Section 420 I.P.C. 3. After that stage, the case of the complainant is that he was fraudulently deceived by the 1st accused in collusion with the 2nd accused. The offence of cheating was committed against the complainant by the two accused persons who allegedly acted in furtherance of their common intention. The crux or gravamen of the allegation is that a blank cheque leaf of the 2nd accused was left in the possession of the 1st accused in furtherance of their common intention and the 1st accused issued the said cheque to the complainant after affixing his signature. It is the case of the complainant that the writings in the cheque as well as signature are that of the 1st accused. 4. In support of this assertion, we have only the oral evidence of PW2 which is stoutly and consistently denied by the 1st accused. No other or better evidence is made available. It has come out in evidence unambiguously that Ext.P1 cheque is drawn on a cheque leaf issued by the bank to the 2nd accused to operate his account. 5. Be that as it may, the very crucial question is whether the handwriting and signature appearing on Ext.P1 cheque is that Crl.L.P. No.580 of 2008 3 of the 1st accused. That is the crucial question of fact that has to be resolved. In support of the version of the complainant, there is only his own oral evidence as PW2. The same is stoutly denied by the accused. The learned Magistrate felt that in the nature of the contentions and in the nature of the evidence adduced, safe conclusion cannot be reached that it was the 1st accused who had signed the cheque leaf issued to the 2nd accused by his bank. Better evidence could certainly have been made available. The cheque could have been sent to the expert. Other admitted documents signed by the 1st accused could have been made available and they could have been sent for comparison to the expert. The complainant has not taken any steps in this regard. 6. The burden is heavily on the complainant to prove the specific allegations raised by him. It having not been proved satisfactorily that the signature appearing on Ext.P1cheque and the writings thereon are that of the 1st accused, the case of the prosecution was rightly held to be not proved by the learned Magistrate. In any view of the matter, I am not persuaded to agree that there is any serious case to be canvassed and urged before this Court in this appeal against acquittal. Crl.L.P. No.580 of 2008 4 7. It is by now trite that the jurisdiction of an appellate court while considering findings of fact in a judgment of acquittal is limited and compelling reasons must be shown to exist to interfere with such finding of facts. The trial court has the advantage of seeing the witnesses perform in the witness stand before it. The initial presumption of innocence in favour of an accused gets further fortified by the judgment of the trial court. Strong reasons must be shown to exist to make out a case for interference in an appeal against acquittal by the appellate court. Such circumstances do not appear to have been made out. No useful or worthwhile purpose will be served by the admission of this appeal. I am satisfied that leave under Section 378(4) Cr.P.C does not deserve to be granted. 8. This Crl.L.P is accordingly dismissed. (R.BASANT, JUDGE) rtr/-