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. 867 of 2011 ----------------------------- (CC.310/2009 of JUDICIAL FIRST CLASS MAGSISTRATE COURT-II, ADOOR) .................... PETITIONER/COMPLAINANT ------------------------------------------ R. ZEENA, EXECUTIVE DIRECTOR, TRAVANCORE RURAL DEVELOPMENT CO. LTD., ADOOR. BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. P. LATHI, KONNAMATTU VEEDU, ANGADICKAL SOUTH.P.O, ANGADICKAL, ADOOR, PATHANAMTHITTA DISTRICT - 671 543. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 867 of 2011 ---------------------------------------- Dated this the 23rd day of September, 2011 O R D E R 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, acquit the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the company conducted chitty business and the husband of the accused was a subscriber in AX-6 Mutual Fund Group No.12 of the complainant/company. According to the complainant, though the subscriber, the husband of the accused accepted the advance amount, he defaulted in making the instalment. Thus, according to the complainant, the first respondent/accused and her husband came to the office of the CRL.L.P.NO.867 of 2011 :-2-: complainant and after convincing the outstanding liability, the accused executed the cheque for an amount of Rs.87,110/- dated 7.5.2007 in favour of the complainant and when the said cheque was presented for encashment, the same was dishonoured for the reason that there was no sufficient fund in the account maintained by the accused and the cheque amount was not paid in spite of the statutory notice issued by the complainant and therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, by filing a complaint, the complainant approached the Judicial First Class Magistrate Court-I, Adoor wherein cognizance was taken for the said offence and subsequently, the case was transferred to the present trial court, viz., Judicial First Class Magistrate Court-II, Adoor. During the trial of the case, PWs. 1 and 2 were examined from the side of the complainant and Exts.P1 to P7 were produced. Though no witness was examined from the side of the defence, Exts.D1 to D2(k) were produced by the accused. After considering the entire materials and evidence on CRL.L.P.NO.867 of 2011 :-3-: record, the trial court has found that the complainant has failed to prove the case of the accused beyond reasonable doubt and accordingly, found her not guilty and consequently, she is acquitted. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for under Section 378(4) of the Cr.P.C. 3. I have heard Sri.D.Kishore, learned counsel appearing for the petitioner and I have also perused the judgment of the trial court, which is sought to be impugned. 4. Going by the judgment of the trial court, it appears that the trial court is constrained to acquit the accused on the ground that the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt, especially when there is failure of the prosecution in adducing any cogent and acceptable evidence regarding the undertaking allegedly made by the accused to discharge the liability of the husband of the accused, who was one of the subscribers of the chitty conducted by the complainant/company. The CRL.L.P.NO.867 of 2011 :-4-: trial court is also of the opinion that by adducing Exts.D1 and D2 series, the accused had succeeded in making out a probable case that Ext.P1 cheque was executed by the accused and given as a security to the complainant during the existence of a chitty transaction of her husband with the complainant/company. 5. Learned counsel for the appellant vehemently submitted that the evidence of PWs.1 and 2 would show that the accused and her husband came to the office of the complainant on 7.5.2007 and after obtaining back the bond executed by the husband of the accused, the accused undertook to discharge the liability due to the complainant from her husband connected with the chitty transaction. Thus, according to the learned counsel, the available evidence on record would show that the accused executed and issued the cheque towards the discharge of the liability which is undertaken by herself. In the light of the above argument of the learned counsel for the petitioner and in view of the finding of the learned Magistrate, based upon the materials and evidence referred to in the impugned judgment, the CRL.L.P.NO.867 of 2011 :-5-: question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave under Section 378(4) of the Cr.P.C. to file appeal against the judgment in question. 6. In the light of the submission made by the learned counsel and in view of the facts and circumstances involved in the case, which can be gathered from the impugned judgment, it is a fact that the original transaction was between the husband of the accused and the complainant/company connected with the chitty conducted by the complainant and according to the complainant, the accused is in no way directly connected with any transaction with the complainant. Even though the complainant/company has got a claim that the bond, executed by the husband of the accused connected with the chitty transaction, is returned to the subscriber or to the accused, absolutely there is no substantial or documentary evidence to substantiate the above claim. There is also no documentary evidence to show that the accused undertook to discharge the liability of her husband connected with the chitty transaction. Going by the documentary evidence CRL.L.P.NO.867 of 2011 :-6-: adduced by the accused itself which shows that the complainant/company has issued several receipts connected with the receipt of amount. If that be so, according to me, if the claim of the complainant/company is true, with respect to the handing over of the bond executed by the husband of the accused and the undertaking made by the accused to discharge the liability of the husband of the accused connected with the chitty transaction, there should be some documents. But, no such evidence is adduced. If that be so, according to me, the finding of the learned Magistrate with regard to the requirement of strict proof of the allegation with respect to the undertaking of the liability is absolutely correct and reasonable. The second finding of the learned Magistrate that the accused has succeeded in making out a probable case that the cheque in question was executed and issued by the accused connected with the chitty transaction of her husband appears to be correct, especially in the light of Exts.D1 and D2 series of documents referred to by the learned Magistrate. That being the position, according to me, in the absence CRL.L.P.NO.867 of 2011 :-7-: of any solid and strict proof that the accused has made an undertaking before the complainant to discharge the liability of her husband connected with the chitty transaction, there is no scope for any interference with the above findings of the learned Magistrate and order of acquittal recorded in favour of the accused even if an appeal is entertained. Therefore, according to me, the petitioner has miserably failed to make out a case to grant leave under Section 378 (4) of the Cr.P.C. for filing an appeal against the judgment. In the result, there is no merit in the leave petition and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.867 of 2011 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.P.NO.867 of 2011 :-9-: O R D E R Dated:2. ..2011