IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 Crl.L.P..No. 412 of 2010() -------------------------- CC.432/2004 of J.M.F.C.,THIRUVALLA .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M.Y.CHACKO, MULAYELIL HOUSE, VENPALA MURIYIL, KUTTOOR VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.GEORGE JACOB (JOSE) SRI.DILEEP P.PILLAI RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. JUBU SAIMON, KOCHUTHAZHATHU HOUSE, CHINGAVANAM P.O., CHINGAVANAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SHAIJAN C.GEORGE FOR R1 PUBLIC PROSECUTOR SMT.REGHA C.NAIR. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.412 of 2010 ----------------------------------------------- Dated 16th November, 2010. O R D E R This petition is filed for granting leave to file an appeal against an order of acquittal. 2. The complainant is petitioner. He filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act on the allegation that for the payment of an amount of Rs.3,72,950/-, accused issued a cheque for the said amount drawn on an account maintained by him in the bank. The cheque, on presentation was dishonoured. After complying with the statutory requirements, the complaint was filed. 3. PW1 to PW3 were examined and Exts.P1 to P6 were marked on the side of the prosecution. The accused denied execution of the cheque and also passing of consideration. DW1 to DW5 were examined and Exts.D1 to D6 were marked on his side. On an analysis of the evidence on record, the court found that the prosecution has not proved the case. 4. Heard both sides. Learned counsel for the Crl.L.P. No.412/10 2 petitioner submitted that PW1 deposed that Ext.P1 cheque was issued by accused. The court below found that the amount was borrowed from one Reji Kuruvila by the complainant to be handed over to accused and that Reji Kuruvila was not examined. It is also submitted that PW2 failed to identify the photograph of accused shown to him, but, PW1 had stated that he could not identify the accused in the photograph without using spectacles. 5. On the submissions made by the petitioner's counsel, leave cannot be granted, since these submissions cannot be accepted. First of all, it was PW3, who did not identify the accused and not PW2, as stated by petitioner's counsel. The trial court considered the evidence of PW3 in detail in paragraph 13 and it is clear from the reasons and findings that PW3 was a person who could even read small letters correctly, without using spectacles. The trial court noticed that he could state even the correct time after seeing the time in his watch. 6. So, trial court has disbelieved PW3's version that Crl.L.P. No.412/10 3 he could not see without wearing spectacles. Admittedly, accused was not identified by seeing the photograph, which was handed over to the witness. PW3 had claimed that he had seen handing over the cheque and also the money. The court referred to the evidence of PW2 and observed that he had allegedly seen the transaction of giving cheque to the complainant. But, his evidence also cannot be relied upon since what he had seen was handing over of a cheque for “Rs.3,20,000/-” whereas Ext.P1 cheque covers an amount of “Rs.3,72,950/-”. The observations of the trial court on the evidence of PW2 can be extracted as hereunder. “PW2 was examined for proving the execution of Ext.P1 cheque but he deposed that during February, 2004, when he came to the house of the complainant he had seen the accused as handing over the cheque for Rs.3,20,000/- to the complainant. But the complainant has not deposed before this court as to when Ext.P1 cheque was given to him by the accused. According to him the amount was borrowed on 27.12.03. But in the complaint and affidavit also it is not stated as to when Ext.P1 cheque was given to him and also as to whether it was given on the date of borrowal of the amount. Ext.P1 cheque was issued for Rs.3,72,95/0 as per the version of PW1. But as per the version of PW2 he had seen the handing over of the cheque for Rs.3,20,000/-. The complainant has not made any Crl.L.P. No.412/10 4 explanation as to whey the accused had not given any document at the time of giving the amount of Rs.3,72,950/-. So also he had not deposed before this court as to whether the accused had given any document at the time when the amount was borrowed. It is highly unbelievable that the complainant had given such a huge amount to the accused without obtaining any document from him at the time of giving the amount. As per the version of PW2 the cheque was given during February 2004. But no proper explanation has been given by PW1 regarding the non execution of any document at the time of borrowal of the amount.” 7. The trial court also found the improbability in handing over the huge amount when a civil suit was pending. The observations of the trial court are in paragraph 16 of the judgment, which read as follows :- “It was submitted by the learned counsel for the accused that as per the version of PW1 the amount of Rs.3,72,950/- was borrowed by the accused from the complainant after filing the civil case against the accused in this case as another Mohanan by the complainant in this case for restraining them from conducting quarrying work in the property of the complainant in this case and civil case is still pending before Sub Court, Kottayam. So it is highly unbelievable that during the pendency of a civil case filed against the accused by the complainant in this case, the complainant had advanced a huge amount of Rs.3,72,950/- Crl.L.P. No.412/10 5 to the accused in this case after having borrowed the said amount from another person by name Reji Kuruvila. The complainant has not given any proper explanation as to whey he had advanced such a huge amount even during the pendency of civil case filed against the accused by the complainant in this case. He could not adduce any evidence before this court to show that he had obtained the amount of Rs.3,72,000/- from Reji Kuruvila and thereafter given the same to the accused in this case.” 8. The trial court also found that according to PW1, the amount was borrowed from one Reji Kuruvila, but he was not examined and he has not adduced any evidence to prove that he had paid the money to the accused. A portion from the judgment of the trial court is extracted hereunder : “As per the version of PW1 the amount of Rs.3,72,950/- was given to the accused at his residence on 27.12.03 and he had given Rs.3,72,950/-, though the accused had requested to give the amount of Rs.3,75,000/-. But according to him he had given the said amount to the accused after having borrowed the said amount from Reji Kuruvila and in respect of the same a case is pending against him filed by Reji Kuruvila. Though it was deposed that he had obtained the amount of Rs.3,72,950/- from one Reji Kuruvila for giving the same to the accused in this case, no evidence was adduced on the side of the complainant. He has not produced any document Crl.L.P. No.412/10 6 before this court to show that the said amount was obtained from Reji Kuruvila and thereafter given the same to the accused in this case. So also he has not made Reji Kuruvila as the witness in this case and has not examined him before this court to prove the said transaction.” 9. The learned Magistrate also appreciated the contentions raised by the accused and the findings are entered in paragraph 16 of the order as follows : “As per the case of the accused no amount was due to the complainant from the accused and he has not borrowed any amount from the complainant and has not executed and issued Ext.P1 cheque to the complainant in discharge of any debt or liabilities. According to him Ext.P1 cheque was given in signed blank form as security to the complainant and some other persons who are the joint property owners of the property, wherein the accused was conducting quarrying work as a licensee on rent and he had given cheques and signed blank stamp paper and along with the same the cheque belonged to another person who is a sub contractor of the accused for conducting the quarrying work was given and the complainant had unlawfully obtained those documents from the possession of DW3 with whom, the said Crl.L.P. No.412/10 7 document were entrusted for safe custody and thereafter manipulated the same and filed this complaint before this court. DWs.1, 3 and 4 deposed in tune with the version of the accused and supported the case of the accused regarding circumstances under which Ext.P1 cheque has come to the hands of the complainant in this case.” 10. On going through the order under challenge, I do not find any infirmity or impropriety which calls for any interference. Learned counsel for the petitioner also could not substantiate any ground to reverse the findings. I do not find any reason for granting leave to file the appeal. This petition is dismissed. K.HEMA, JUDGE. tgs