IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 31ST OCTOBER, 2011 / 9TH KARTHIKA, 1933 Crl.L.P..No. 810 of 2011 ------------------------------- (AGAINST THE ORDER IN CC.1725/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS -I, THRISSUR) .................... PETITIONER/COMPLAINANT: ---------------------------------------- M/S.MOIDEEN STEELS, SATHAN NAGAR, THRISSUR-1,REP.BY POWER OF ATTORNEY HOLDER,JIMMY T.D,S/O.DEVASSY T,THOJOMMAN HOUSE, NETTISSERY P.O.,THRISSUR,NOW REP.BY JOSE MATHEW MANAGING PARTNER,MODERN STEELS BY ADV. SRI.JIJO PAUL SMT.T.RESMI DAMODARAN RESPONDENTS(S): -------------------------- 1. MADHU, PROPRIETOR, KRISHNA CONSTRUCTION, THEKOOT VALAPPIL HOUSE,AMBALAPURAM, PEINGADOOR P.O.,THRISSUR-680581 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-31 BY ADV. SRI.C.A.CHACKO FOR R1 BY PUBLIC PROSECUTOR SMT.LOWSY FOR R2. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 810 of 2011 ---------------------------------------- Dated this the 31st day of October, 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, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the petitioner is that the accused issued a cheque for Rs.4 lakhs to discharge the liability which is due to the complainant and when the cheque presented for encashment, the same was dishonoured as 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 thus, according to the complainant, the accused has committed the offence CRL.L.P.NO.810 OF 2011 :-2-: punishable under Section 138 of the N.I.Act. With the said allegation, the complainant approached the Judicial First Class Magistrate Court- I, Thrissur by filing a complaint whereupon C.C.No.1725 of 2007 is instituted and during the trial of the case, on behalf of the complainant, PW1 was examined and Exts.P1 to P9 documents were produced. Though no witness was examined from the side of the defence, Exts.D1 to D3 were produced and marked. After considering the entire evidence and materials on record, the trial court has found that Ext.P1 cheque was not issued by the accused in discharge of any legally enforceable debt and it is further held that Ext.P1 is not supported by consideration. It is the above findings and the consequent 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. Heard Sri.Jijo Paul, learned counsel appearing for the petitioner and I have perused the judgment of the trial court carefully. 4. Learned counsel for the petitioner vehemently submitted that CRL.L.P.NO.810 OF 2011 :-3-: the transaction between the complainant and the accused is not disputed and Exts.D1 to D3 would show the correctness of the transaction alleged by the complainant and thus, according to the learned counsel, the complainant has established the fact that Ext.P1 cheque was issued towards the discharge of the liability that is due to the complainant, but, the learned Magistrate failed to understand the above fact and without assigning proper and legal reasons, the accused is acquitted. Going by the judgment of the trial court, it can be seen that according to the learned Magistrate, PW1, who deposed on behalf of the complainant, has no direct knowledge regarding the entire transaction and the so-called liability due to the complainant. The evidence of PW1 has been elaborately considered in paragraph 7 of the judgment of the trial court. Thus, after examining the evidence of PW1, the trial court has found that without verification of the accounts maintained by the company, PW1 is not in a position to say whether the balance amount to be paid by the accused would come to an amount of Rs.1,82,226/- and he had also admitted that he does not CRL.L.P.NO.810 OF 2011 :-4-: know whether the accused has the liability of an amount of Rs.4 lakhs to the company to be discharged by him. PW1 has also stated that he does not know whether the amount paid by the accused as per Exts.D1 and D3, were the amount towards discharging the liability of an amount of Rs.4 lakhs as per Ext.P1. According to the learned Magistrate, the complainant has not produced any documentary evidence connected with the transaction and to prove the liability that is due from the accused. It is on the basis of the above fact and evidence, the trial court has concluded that the complainant has not produced any document to show that Ext.P1 cheque was issued by the accused in discharging the legally enforceable debt and the learned Magistrate has further held that therefore, it cannot be said that Ext.P1 is supported by any consideration. In the light of the above findings on the basis of the evidence and materials referred thereto and in the light of the arguments advanced by the learned counsel for the petitioner, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the CRL.L.P.NO.810 OF 2011 :-5-: judgment of the trial court, acquitting the accused under Section 255 (1) of Cr.P.C. 5. The specific case set up by the complainant in his complaint and in the chief affidavit is to the effect that a sum of Rs.4 lakhs was due to the petitioner from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque. During the trial, by producing Exts.D1 to D3, the accused has succeeded in proving that certain amounts were paid to the complainant. Counsel for the petitioner submitted that those payments were effected after the institution of the complaint, and according to him, the said fact would further show that the accused is also admitting the liability. I am unable to sustain the above contention. Though the case of the complainant is that the liability due to the petitioner is Rs.4 lakhs, there is no evidence on record to show that Rs.4 lakhs is due to the petitioner. As rightly found by the learned Magistrate, PW1, who was examined in favour of the complainant, has admitted that Exts.D1 to D3 are the vouchers issued from the Bank to the accused showing CRL.L.P.NO.810 OF 2011 :-6-: the payment and as per Ext.D3, the balance amount to be paid by the accused will come to Rs.1,82,226/-. The above admission of PW1 itself will go against the very claim of the complainant that a sum of Rs.4 lakhs is due to the complainant and Ext.P1 was issued towards the discharge of such a liability. In the light of the above specific admission of PW1, I am of the view that the trial court is fully justified and correct, especially when the complainant has miserably failed to convince the court that Rs.4 lakhs is due from the accused, that Ext.P1 was issued by the accused in discharging any legally enforceable debt and Ext.P1 cheque is not supported by consideration. The very admission of PW1, based upon Exts.D1 to D3 would positively disprove the claim of the complainant that Ext.P1 is issued to discharge the liability of Rs.4 lakhs. In the light of the above evidence and materials, I am of the view that the findings of the court below are fully justified and therefore, there is no merit in this petition so as to grant leave to file appeal against the above judgment. According to me, even if an appeal is entertained against the above CRL.L.P.NO.810 OF 2011 :-7-: findings, which are legally supported by the evidence on record, especially on the basis of the admission of PW1, there are no compelling or substantial reasons to interfere with the above order of acquittal. Therefore, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. Accordingly, this Criminal Leave Petition is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.810 OF 2011 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R CRL.L.P.NO.810 OF 2011 :-9-: Dated:2. ..2011