IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 Crl.L.P..No. 1199 of 2010() --------------------------- CC.25/2009 of J.M.F.C.-III, KOTTARAKAKARA .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M/S.SREE GOKULAM CHIT & FINANCE COMPANY PVT.LTD., SREE GOKULAM TOWERS, NO.66, ARCOT ROAD CHENNAI, REPRESENTED BY S.PRADEEP, LEGAL CLERK, MOOLATHARATHOPPIL, KANTRAMKANI, MANTRO ISLAND.P.O., KOLLAM. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. GURUDAS, S/O.RAMANKUTTY, CHAPRAYIL, KANDALLOOR NORTH, PATTOLI MARKET.P.O., KAYAMKULAM, PIN-690 531. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.HARILAL FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Leave Petition No.1199 of 2010 ----------------------------------------------- Dated 18th January, 2011. O R D E R This petition is filed for special leave to appeal. 2. Petitioner filed a complaint before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act against first respondent on the allegation that accused issued a cheque for Rs.72,913/- in favour of complainant company, for discharging the debt towards complainant by way of payment towards chitty. The cheque, on presentation was dishonoured for want of sufficient funds. A notice was issued and though accused received the notice, he failed to make payment and hence the complaint. 3. The complainant examined PW1 and marked Exts.P1 to P8 on his side. On the defence side, Exts.D1 to D3 were marked. On an analysis of the evidence on record, trial court found that complainant failed to prove execution of cheque and hence, presumption under Section 139 of the Negotiable Instruments Act cannot be drawn in favour of complainant. 4. The trial court found that the entires in Ext.P1 Crl.L.P. No.1199/2010 2 instrument were not written with the pen used for affixing signature. So, there is every reason to believe that Ext.P1 cheque is an instrument handed over to complainant in blank form while receiving chitty amount. It is also found that there is nothing before the court show that accused has any dues of the chitty. 5. On the other hand, trial court held that Ext.D1 proves repayment of Rs.1,33,650/-. It is evident from Exts.D2 and D3 that even after issuance of cheque, accused repaid some of the defaulted instalments. While PW1 was examined, he was totally ignorant about the amount due from accused. According to accused, even after repayment of the amount, complainant company filled up the entries in the cheque, which was handed over as a blank one, while receiving Rs.1,50,000/- and filed a false calse against him without any basis. 6. PW1 stated in the box that accused received the amount during the 6th instalment. Though he admitted that complainant company received payment vouchers and signed Crl.L.P. No.1199/2010 3 chitty agreement from accused, no evidence was produced. Though the appellant's counsel was heard, he could not substantiate that the above findings are wrong. I am not satisfied from the submissions made that the findings entered into by the trial court are unsustainable. In the above circumstances, I am not inclined to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs