IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.L.P..No. 234 of 2011() -------------------------- ST.35/2009 of J.M.F.C. - III, KOLLAM .................... PETITIONER/COMPLAINANT ------------------------------------------ SHIBU ALEX, THOPPIL PUTHEN VEEDU, PERINGALAM P.O., ARINALLOOR, KOLLAM, NOW RESIDING AT KODAKKADA BUILDINGS, KAIKULANGARA NORTH, ANCHUKALLUMOODU, THIRUMULLAARAM P.O., KOLLAM-12. BY ADV. SRI.K.G.ANIL BABU SRI.R.RAJESH(PULLIKADA) RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. BIJU, THAZHATHU KIZHAKKATHIL, KALLUMTHAZHOM P.O., KOLLAM. PIN – 691 004. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN- 682 031. BY PUBLIC PROSECUCTOR SRI. P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. L.P. No. 234 of 2011 ----------------------------------------------- Dated this the 25th day of March, 2011. O R D E R This petition is filed for grant of leave to file appeal against an order of acquittal. 2. The petitioner is the complainant. He filed a complaint against first respondent before the Magistrate Court alleging offence under Section 138 of the Negotiable Instruments Act (for short 'the Act'). According to petitioner, first respondent borrowed Rs.45,000/- from the petitioner and issued Ext.P2 cheque in favour of the complainant. The cheque, Ext.P2, on presentation was dishonoured on the ground of 'funds insufficient'. A lawyer notice was issued but no payment was effected by the first respondent. Hence, he filed the complaint. 3. To prove petitioner's case, PW1 was examined and Exts.P1 to P7 were marked. The trial court, after consideration of the entire evidence on record found that there is no evidence to prove that Ext.P2 was drawn on the account maintained by [Crl.L.P.234/11] 2 the first respondent with the bank. Therefore, the offence under Section 138 of the Act was not made out and the first respondent was acquitted. 4. Learned counsel for petitioner submitted that petitioner mounted the box and stated that the cheque was presented before the bank and the bank had returned it stating that the funds were insufficient. The dishonour memo itself will show this fact. Hence, it is not correct to say that petitioner has not proved the relevant fact. 5. On hearing petitioner's counsel and on going through the impugned order, I find that trial court found that PW1, the Power of Attorney Holder of complainant, has not stated that the cheque was drawn on the account maintained by the first respondent with the bank. It was also observed that PW1 did not deny the suggestion by the defence counsel that the first respondent had no account in the Canara Bank. When a suggestion was put to that effect, PW1 stated that he did not know. The accused has definite case that he is not maintaining any account in the bank as alleged by the prosecution. There is no reason why the above findings cannot [Crl.L.P.234/11] 3 be accepted especially since petitioner's counsel was not able to substantiate that such findings are wrong or perverse. In the above circumstances, I do not find any reason to grant leave to file appeal. This petition is dismissed. K.HEMA, JUDGE. Krs.