IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 Crl.L.P..No. 839 of 2011() ------------------------------------ CC.190/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM .................... PETITIONER/COMPLAINANT ------------------------------------------ KOCHUMON, AGED 42, S/O.SHAMSUDEEN, OWNER OF PUTHUVAL ASSOCIATES, GLASS & PLYWOOD MERCHANTS, KMC 32/366C, NEAR BUS STATION, KSRTC, NH-47, KAYAMKULAM. BY ADV. SRI.S.MOHANAN RESPONDENTS/STATE AND ACCUSED --------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. MANOJ, AGED 35 YEARS, OWNER OF SAI TRADING COMPANY, ASAD ROAD, KOCHI, KALOOR-682 017. R1 BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.839 of 2011 -------------------------------------------- Dated this the 3rd day of October, 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 towards the purchase of goods worth Rs.1,11,375/- from the complainant, the accused issued a cheque dated 10.12.2007 and the same was dishonoured, for want of fund, when presented for encashment and the accused has not repaid the cheque amount in spite of the formal notice and therefore, the accused has committed the offence punishable u/s.138 of the NI Act. Accordingly, the complainant approached the Judicial First Class Magistrate Court, Kayamkulam by filing a complaint, upon which cognizance was taken and instituted CC.No.190/2008. During the trial of the case, PW1 was examined, the complainant himself was examined as PW1 and produced Ext.P1 to P11. From the side of the defence, DW1 was examined and Ext.X1 to X4 were Crl. L.P.NO.839 of 2011 2 marked as defence exhibits. After considering the evidence on record, the trial court has found that no offence u/s. 138 of the NI Act is committed by the accused as the cheque amount was not liable to be paid to the complainant as on the date of the presentation of the cheque. It is the above finding and order of acquittal, sought to be challenged by filing an appeal for which the leave of this court sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri.S.Mohanan, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. The specific contention taken by the accused is that towards the discharge of the liability that arose out of the transaction between the complainant and the accused, the accused has made three payment before the presentation of the cheque. According to the accused, he paid Rs.25,000/- in advance to the complainant on 5.12.2007 and thereafter, 45,000/- by making credit to the account of the complainant on 2.2.2008. It is also the case of the accused that, he had repaid Rs.20,000/- more, through another retailer by name Lal. It is also relevant to note that the accused has sent a reply to the statutory notice, stating the above contention. During the trial, the defence has also adduced evidence by which it is proved Crl. L.P.NO.839 of 2011 3 that Rs.45,000/- was paid to the complainant as observed by the learned Magistrate. It can be seen that Ext.X4 is the attested copy of the cheque drawn from the account of the accused with Lord Krishna Bank, in favour of the complainant firm Puthuval Associates for Rs.45,000/- dated 2.4.2008. On the basis of the above materials and other evidence, the trial court has found that there is nothing to doubt, the case of the accused that he made payment towards the partial discharge of the liability covered by Ext.P1 cheque issued on 10.12.2007. 5. In the light of the above discussion and the materials cited above as referred the judgment of the trial court, it can be seen that the trial court is fully justified and correct in its finding that no offence u/s.138 would lie against the accused, since he is not liable to pay such an mount as shown in the cheque, before its presentation. In the result, I find no merit in the leave petition, accordingly the same is dismissed. V.K.MOHANAN, JUDGE. pm/