IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 Crl.L.P..No. 850 of 2011() -------------------------- ST.213/2009 of C.J.M.,KOTTAYAM .................... COMPLAINANT : ------------------------------- BIJU KURIAKOSE, OOMMACHERIL HOUSE, KUIRCHY.P.O, KOTTAYAM. BY ADV. SRI.VIJAI MATHEWS RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. ANOOP ABRAHAM, MANIMALAPARAYIL HOUSE, CHINGAVANAM.P.O, KOTTAYAM. - 686 514. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk. V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.850 of 2011 -------------------------------------------- Dated this the 23rd day of September, 2011 ORDER The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this court u/s.378(4) of 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 u/s.255(1) of Cr.P.C. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque, which when presented for encashment dishonoured and no amount covered by the cheque was paid in spite of the statutory notice. Thus, according to the complainant accused had committed the offence punishable u/s.138 of the NI Act. With the above allegation, the complainant approached the Chief Judicial Magistrate Court, Kottayam by filing a complaint whereupon cognizance was taken for the offence u/s.138 of the NI Act and instituted ST No.213/2009. During the trial of the case, the complainant himself was examined as PW1 and produced Ext.P1 to P6 Crl. L.P.NO.850 of 2011 2 documents. From the side of the defence, the accused himself examined as DW1 and produced Ext.D1 to D3 documents. After considering the evidence and materials on record, the trial court has found that the accused has succeeded in rebutting the presumption as envisaged Section 139 of the act and accordingly, found him not guilty and acquitted him as per Section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri. Vijay Mathew, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. The learned counsel for the petitioner vehemently submitted that the complainant has produced the cheque in question from his possession and he had adduced evidence as PW1. According to the learned counsel, the learned Magistrate over looking the above evidence of the complainant and in the absence of any positive evidence from the part of the defence erroneously came into the conclusion that the accused had succeeded in rebutting the presumption. According to, the learned counsel, the above finding of the court below is incorrect Crl. L.P.NO.850 of 2011 3 and illegal. In the light of the above submission and in view of the materials referred to by the learned Magistrate in the impugned judgment and in view of the finding of the court below, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave in favour of him u/s.378(4) of Cr.P.C. 5. Going by the judgment of the trial court, it can be seen that it is a case where the complainant as well as the accused admitted that there was some transaction between themselves. When the complainant claim that the accused borrowed Rs.1,00,000/- from him and towards the discharge of the said liability the accused issued Ext.P1 cheque, the case of the accused is that when he availed a loan of Rs.5,000/- from the complainant during the year 2005, he had issued one blank signed cheque and signed blank stamp papers to the complainant and the said amount was completely repaid with interest, but the complaint was reluctant to returned the blank cheque and other papers and according to the accused Ext.P1 chehque is the said blank cheque, which was given to the complainant connected with the availing of loan of Rs.5,000/- from the complainant. It is true, the accused has not produced Crl. L.P.NO.850 of 2011 4 any evidence to substantiate the above version of the accused. In paragraph 16 of the trial court judgment after appreciating the evidence of the complainant, the trial court has found that neither in the complaint, nor in the deposition of PW1, the complainant has stated anything about the details of the transaction, particularly the exact date of which the amount allegedly advanced to the accused. It is also observed by the learned Magistrate, that during the cross examination, the complainant has accepted that there is no document with him to prove the advance of Rs.1,00,000/- to the accused. The trial court has also found that there is no evidence to prove the source of money for the complainant to given loan to the accused. Further on the basis of the defence exhibits, the trial court has observed that the defence case stated by the accused appears to be more probable that the accused was conducting illegal money lending business. The learned Magistrate has observed that in the Chingavananm Police Station itself 8 crimes registered against the complainant for various offences of IPC. After considering the above materials and evidence and after considering the dictum laid down by the Hon'ble Apex Court in the decision reported in (2006 (6) SCC 39) M.S.Narayanan Crl. L.P.NO.850 of 2011 5 Menon @ Mani v. State of Kerala, the learned Magistrate has held that Ext.P1 cheque could not be said to have been issued in discharge of the debut as claimed by the complainant. In the decision in M.S.Narayanan Menon @ Mani v. State of Kerala reported in 2006(6) SCC 39, the Hon'ble Apex Court held in order to rebut the presumption u/s.139 of the NI Act, the accused need not mounted to the box and he can discharge his duty to rebut the presumption by making out a case on the basis of the materials available from the evidence of the complainant or the holder of the cheque. In the present case, as rightly observed by the learned Magistrate, the complainant is a person against whom 8 crime cases are pending in the Chingavananm Police Station alone. The defence exhibit substantiate the above facts. Under such a circumstances, according to me, the learned Magistrate is fully justified in opting to accept the version supported by the evidence of the accused and rejecting the evidence of PW1, the complainant especially when there is no details and evidence regarding the transaction claimed by the complainant. That being the position, according to me, even if an appeal is entertain, there is no scope for any interference with the findings, especially, in the absence of any positive Crl. L.P.NO.850 of 2011 6 evidence in support of the claim of the complainant and there is no scope for any interference with the order of acquittal. In the absence of any compelling circumstances or substantial reasons, the appellate court will not be justified in interfering with the order of acquittal and in that account also there is no scope for any interference with the order of acquittal. Therefore, the petitioner has miserably failed to make out a case, so as to grant special leave u/s.378(4) of Cr.P.C. In the result, there is no merit in this leave petition and accordingly, the same is dismissed, declining leave u/s.378(4) of Cr.P.C. V.K.MOHANAN, JUDGE. pm/