IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 Crl.L.P..No. 389 of 2011() -------------------------- ST.32/2009 of J.F.M.C.-III, MAVELIKKARA .................... (S): COMPLAINANT ------------------------------- JACOB DAVID, AGED 73 YEARS, MANIVELIL PUTHEN VEEDU, KUNNAM MURY, THAZHAKKARA VILLAGE, MAVELIKKARA TALUK. BY ADV. SMT.S.L.SYLAJA RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. K.M.JOY, KAIPPANANNIKKAL, MEVADAKKARA, MEENACHIL VILLAGE, MEENACHIL TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.C.THOMAS FOR R1 SRI.ROJO J.THURUTHIPARA FOR R1 PUBLIC PROSECUTOR SRI.JAIBY PAUL THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.389 of 2011 -------------------------------------------- Dated this the 19th day of July, 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 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. Heard Smt. S.L.Shylaja, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 3. The case of the complainant is that the accused availed a loan amount of Rs.5,15,500/- from the complainant and had issued 3 cheques which were dishonoured and therefore, C.C.No.1027/2005 was filed against the accused, but the said case was withdrawn as per mediation and accordingly, the accused issued Ext.P1 cheque dated 20.3.2006 for a sum of Rs.5,15,500/- which when presented for encashment dishonoured and the accused has not paid the amount in spite of statutory notice issued in this regard and hence according to the complainant the accused has committed the offence punishable Crl. L.P.NO.389 of 2011 2 u/s.138 of the NI Act. During the trial of the case, the complainant himself was examined as PW1 and produced Ext.P1 to P12 documents from his side. No evidence, either oral or documentary, adduced from the side of the defence. The trial court on conclusion of the trial from the available evidence found that the complainant has failed to prove the due execution of the cheque and passing of consideration. Consequently, it has found that the complainant failed to prove Ext.P1 cheque was drawn by the accused in favour of the complainant in discharge of legally enforceable debt. Thus, the accused is acquitted u/s.255(1) of Cr.P.C. It is the above finding and the judgment of the trial court sought to be challenged by filing an appeal for which special leave of this court sought u/s.378(4) of Cr.P.C. 4. The counsel for the petitioner vehemently submitted that the findings of the court below is against the facts and evidence on record and the trial court has also committed mistake not extending the benefit of Section 139 of the Act in favour of the complainant. According to the learned counsel, the learned Magistrate ought not have accepted the version of the defence regarding the transaction pertained to the year 2001 involved Rs.1,23,000/-. It is also the submission of the learned Crl. L.P.NO.389 of 2011 3 counsel that in the absence of any evidence or materials from the side of the accused, the learned Magistrate ought not have accepted the case of the defence, who even failed to send a reply to Ext.P4 statutory notice. According to the learned counsel, the learned Magistrate seriously erred in observing that Ext.P1 cheque bears the next number of cheque alleged to have been issued in C.C.No.1027/2005 and the petitioner had obtained 4 cheques with respect to the transaction involving Rs.1,23,000/-. It is also the submission of the learned counsel, that the learned Magistrate has committed wrong in holding that C.C.No.1027/2005 was purposely withdrawn by the complainant and a new case was filed misusing those cheques. 5. I am unable to sustain the above contentions in the light of the facts and circumstances and the evidence involved in this case and the findings arrived on by the learned Magistrate. The evidence, materials and facts involved in this case are elaborately referred to in the discussion that contained in paragraph 5 of the judgment of the trial court. The case of the complainant, which I indicated earlier, is that the accused availed loan of Rs.5,15,500/- and issued 3 cheques which were dishonoured and accordingly the complainant preferred Crl. L.P.NO.389 of 2011 4 CC.No.1027/2005 which was subsequently withdrawn as per mediation and in terms of such mediation the accused issued Ext.P1 cheque dated 20.3.2006 for Rs.5,15,500/-. According to PW1, the accused availed loan in the year 2002 promising to repay the amount within April, 2003. It is also admitted that the accused is the relative of his wife. According to him, Ext.P1 cheque was issued after two years of the cheques mentioned in Ext.P7 complaint whereas, the specific contention taken by the accused is that he availed a loan of Rs.1,23,000/- from the complainant during the year 2001 and the accused had given 4 cheque leaves as security for the above said transaction. According to the accused the said amount was borrowed from the complainant for furnishing his house. 6. In the light of the claim of the complainant and the defence and the materials and evidence on record and particularly the findings of the court below the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused u/s.255(1) of Cr.P.C. 7. The trial court after considering the entire evidence on record found that to prove the case of the complainant there is Crl. L.P.NO.389 of 2011 5 only evidence of PW1 and no other independent witness. The trial court has also found that the complainant has failed to produce documentary evidence to show that he was having source to pay Rs.5,15,500/- to the accused in the year 2002 as alleged. According to the learned Magistrate, if the claim of the complainant is correct that he had advanced a loan of Rs.5,15,500/- to the accused, there is no explanation for him as to why he receive 3 cheques which are involved in CC.No.1027/2005 for an amount of Rs.5,11,500/-. The above observations and findings of the trial court is appears to be correct and sufficient to satisfy the mind of a prudent man. It is pertinent to note that the case of the accused, who is the relative, wife of the complainant is that he had availed a loan of Rs.1,23,000/- from the complainant and at that time 4 cheques were issued as a security. There is evidence to show that the 3 cheques covered by CC No.1027 of 2005 bearing consecutive numbers as 69905, 69906 and 69907. The learned Magistrate has specifically found that Ext.P1 cheque having the number 69908 which is the next number of the cheque involved in CC No.1027/2005. It is also found by the learned Magistrate that if CC No.1027/2005 was withdrawn as per mediation, Ext.P9 would Crl. L.P.NO.389 of 2011 6 have contain the signature of the accused. It is also on evidence that the complainant has any idea as to who filled up the cheque. It is pertinent to note that though the complainant has got claim that the accused availed a loan of Rs.5,15,500/-, there is no explanation for him accepting 3 which covered by CC No.1027/2005, where in the total amount will come only Rs.5,11,500/- which is a bigger amount when compare with the loan amount. In this juncture, the defence becomes more probable and acceptable thatExt.P1 cheque is one among the 4 cheque leaves given as security connected with loan availed by himself from the complainant. Thus, even though, no separate evidence is adduced, he had included in making a probable case of defence from the materials and evidence of the complainant as held in Krishna Janardhan Bhat Vs. Dattatraya Hegde case reported 2008 (1) KLT 425 (SC). Going by the above evidence and materials and in the light of the above discussions, I am of the view that the learned Magistrate is correct in holding that the evidence on records are not sufficient to prove the due execution of the cheque and the passing of consideration. Therefore, the consequent finding of the learned Magistrate, that the complainant has failed to prove that Ext.P1 cheque was Crl. L.P.NO.389 of 2011 7 drawn by the accused and issued in favour of the complainant in discharge of legally an enforceable debt, is correct. According to me, the accused had succeeded in making out a probable case also. 8. Having regard to the above facts and the discussion thereon, I am of the view that there is no scope for any interference with the findings and the order of acquittal recorded by the trial court in case an appeal is entertain. There is no question of facts or law to be considered on the basis of the given facts and circumstances involved in this case. Thus, according to me, the petitioner has miserably failed to make out a case to grant special leave. Therefore, this petition is devoid of any merit and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/