IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Crl.L.P..No. 736 of 2011() -------------------------- AGAINST THE ORDER OF ACQUITTAL DATED 29.3.2011 IN S.T.NO.1150/2009 of J.M.F.C.,ADIMALI .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M/S. KLM CHIT SYNDICATE, 1ST FLOOR, MATHEWSON TRADE CENTRE, KALOOR, COCHIN, (REPRESENTED BY ITS P/A. HOLDER AND MANAGER ABDUL LATHEEF, AGED 40 YEARS, S/O. ABDUL SYED, KUNJATTU HOUSE, PIDAVOOR KARA, PALLARIMANGALAM.P.O., KOTHAMANGALAM. BY ADV. SRI.S.DILEEP (KALLAR) RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. LEELA RAJAN, W/O. P.G. RAJAN, PUTHENVEEDU, KOLLAMKUDIMUGAL,THRIKKAKARA.P.O., ERNAKULAM DISTRICT-682021. PUBLIC PROSECUTOR SMT LOWSY THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.736 of 2011 -------------------------------------------- Dated this the 13th 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 it is a partnership firm, engaged in the business of chitty and towards the discharge of a legally enforceable debt and liability due to the complainant, the accused issued a cheque drawn on her account for an amount of Rs.1,26,563/- dated 29.6.2009, which when presented for encashment dishonoured, for want of sufficient fund and accused has not paid the amount in spite of the statutory notice issued by the complainant and received by her. Thus, according to the complainant, the accused committed the offence punishable u/s.138 of the NI Act and with the above allegation by filing a complaint, the complainant approached the court of Judicial Magistrate of First Class, Adimaly, whereupon cognizance was taken for the said offence and Crl. L.P.NO.736 of 2011 2 instituted ST Case No.1150/2009. During the trial of the case, PW1 was examined from the side of the prosecution and produced Exts.P1 to P9. No evidence either oral or documentary produced from the side of the defence. On consideration of the entire evidence and materials on record, the trial court has found that the complainant has failed to prove that he had received Ext.P1 cheque in discharge of a legally enforceable debt and liability due from the accused. The above findings and order of acquittal sought to be challenged by filing an appeal and therefore, the petitioner seeks leave of this court u/s.378(4) of Cr.P.C. 3. I have heard Sri. S.Dileep Kallar, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that, the complainant has succeeded in establishing the allegation against the accused by adducing cogent and satisfactory evidence, but the trial court has over looked the above evidence and acquitted the accused. It is also the submission of the learned counsel that the learned Magistrate of the trial court has miserably failed to found that the accused has not rebutted the presumption, contemplated by Section 118 and 139 of the NI Act. It is also the submission of the learned counsel that the Crl. L.P.NO.736 of 2011 3 finding of the trial court, that the complainant has not produced any document to prove that the husband of the accused is a subscriber of chitty and accused is the guarantor of the said chitty transaction, are absolutely false and incorrect. According to the learned counsel in the absence of any dispute or challenge from the part of the accused with respect to the chitty transaction, the trial court is not justified in its finding that the complainant has failed to prove that husband of the accused is a subscriber of the chitty. 5. I have carefully considered the argument advanced by the learned counsel for the petitioner and the finding of the court below. 6. According to the learned Magistrate, there is no case for the counsel that the accused has borrowed money from the complainant and during the cross examination of PW1, he has deposed that the amount was received by the husband of the accused. The fact deposed by PW1, during the cross examination that the accused was a guarantor to the chitty transaction not find a place in the complaint. The trial court has also found that there is no records to show that either the complainant firm is conducting a chit with No.0.36 or that the husband of the accused or herself, is a subscriber in that chit. The learned Magistrate has also found that there is no records to prove that Crl. L.P.NO.736 of 2011 4 the accused was a guarantor and the cheque was issued by her in her capacity as a guarantor. Thus, the trial court has finally concluded that the complainant has failed to prove that there is a liability between the complainant and the husband of the accused or with the accused. So on the basis of the above findings, the learned Magistrate further found that no presumption can be drawn in favour of the complainant. In the light of the argument advanced by the learned counsel, the question to be considered is whether the petitioner is succeeded in making out a case so as to grant leave in favour of the petitioner to file an appeal against the judgment of the trial court. 7. On a scanning of the judgment in question and the materials as referred to therein, it can be seen that the only evidence available in support of the case of the complainant is that of the deposition of PW1 and Exts.P1 to P9. Ext.P1 is the partnership deed, P2 is the resolution, P3 is the power of attorney given in favour of PW1. Ext.P4 is the cheque, Ext.P5 and P6 are the memos connected with the dishonour of the cheque. Exts.P7 to P9 are the documents connected with the lawyer notice. Absolutely, no other documentary evidence is produced to prove the transaction between the complainant and the accused. In the proof affidavit, PW1 has stated that the Crl. L.P.NO.736 of 2011 5 husband of the accused was a subscriber of chit. No.0.36 conducted by the firm and the husband of the accused has paid 12 monthly instalment and on payment of the 5th instalment, the chit was auctioned and the husband of the accused received Rs.2,25,000/-. According to the affidavit on 27.3.2008, the husband of the accused and the accused have signed and executed and issued debt acknowledgment in favour of the firm. According to the affidavit on failure on the payment of 5th instalment as undertaken by the accused and the husband of the accused they settled the account with the complainant on 26.6.2009 for an amount of Rs.1,26,563/- and towards the discharge of the said liability, the accused issued Ext. P4 cheque for Rs.1,26,563/-. On a consideration of the entire evidence and materials with the allegation contained in the complaint, the learned Magistrate has found that there is no averment in the complaint that the accused received any amount from the complainant. But the only statement is that for the discharge of a legally enforceable debt and liability, the accused issued a cheque. The trial court has also found that during the cross examination of PW1, he had deposed that the amount was received by the husband of the accused and he had also stated that the accused was a guarantor to the chitty transaction. The trial court has further found that though PW1 has claimed and Crl. L.P.NO.736 of 2011 6 stated in the complaint that the accused is a guarantor, there is no averment in the complaint. According to PW1, Ext.P4 is the document to show that the accused is a guarantor. But the learned Magistrate has found that there is no such endorsement therein. I have already referred to the documents produced by the complainant, which would further shows that the trial court is absolutely correct in its finding that absolutely no records is produced to show that the complainant firm conducting chitty with No.0.36 and either the husband of the accused or the accused is a subscriber in that chitty. No document is also produced to show that the accused is a guarantor of the chitty, conducted by the complainant in which, the husband of the accused is a subscriber. Even though, the complainant claimed to have conducted chitty business, no document is produced to show those business. So according to me, the learned Magistrate is correct in his finding that the complainant has failed to prove that there was legally enforceable debt and liability due to the complainant from the accused. 8. It is also relevant to note that the accused has denied the execution and issuance of the cheque in question and therefore, it was incumbent upon the complainant to prove the above facts beyond reasonable doubt that there was a legally enforceable debt and the cheque was issued and executed Crl. L.P.NO.736 of 2011 7 towards the discharge of such liability. It is also relevant to note that PW1 has admitted during cross examination that, he is not aware of the entire transaction between the husband of the accused and the complainant, even though he had claimed that he saw the accused issuing Ext.P4 cheque. So there is no evidence to prove that there was a legally enforceable debt due to the complainant from the accused. Absolutely, there is no evidence to prove that the complainant was conducting a chit No.0.36 and the liability of the accused due to the complainant and the accused has executed and issued Ext.P4 cheque towards such liability. 9. In the light of the above discussion and the materials and evidence referred to above which contained in the impugned judgment, it can be seen that absolutely there is no evidence to show that the accused is anyway indebted to the complainant and she had issued Ext.P4 cheque towards the discharge of any liability that due to the complainant from the accused. The evidence of PW1 and the averments in the complaint, no way improve the case of the complainant, but the same will go against the very root of the allegation raised by the complainant against the accused. Thus, it can be seen that the complainant has miserably failed to establish the essential ingredients of Section 138 of the NI Act and therefore, the learned Magistrate Crl. L.P.NO.736 of 2011 8 is fully justified in his finding that the complainant failed to prove that had received Ext.P4 cheque towards the discharge of a legally enforceable debt or liability. That being the position, even if an appeal is entertained, there is no scope for any interference with the findings arrived on by the court below because those findings are supported by the materials and evidence and justifying such findings. There is no substantial or compelling reason to interfere with the order of acquittal recorded by the trial court. Therefore, the petitioner has miserably failed to make out a case so as to grant leave as prayed for under Section 378(4) of Cr.P.C. In the result, there is no merit in this leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/