IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 Crl.L.P..No. 40 of 2011() ------------------------- ST.852/2007 of J.M.F.C.-I,KOZHIKODE .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ K.K.MANOHARAN, AGED 45 YEARS, KINARULLAKANDI HOUSE, P.O.THIKKODI, KOZHIKODE DISTRICT. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. BINNY, S/O.GOVINDAN NAIR, CHEVARAMBALAM HOUSING BOARD FLATS, CHEVARAMBALAM P.O., 673 017, CALICUT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No.40 of 2011 ----------------------------------------------- Dated 31st January, 2011. O R D E R This is a petition filed for special leave to file an appeal against an order of acquittal. 2. Appellant is the complainant. He filed a complaint before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act, against first respondent. As per the allegations in the complaint, complainant and accused were known to each other. He approached the complainant and borrowed an amount of Rs.1,05,000/- on condition that he would repay the amount within two months. In discharge of the said debt, accused issued Ext.P1 cheque for the said amount. The cheque on presentation bounced stating that “funds insufficient”. A lawyer notice was issued demanding payment. The accused accepted the notice, but did not make the payment. Hence, the complaint was filed. 3. To prove the case, petitioner examined PW1 and PW2 and marked Exts.P1 to P5. The accused denied the entire Crl.L.P.No.40/11 2 transactions and execution of the cheque in favour of complainant and took up a specific defence. In support of his case, DW1 was examined. The trial court, on analysis of the evidence found it difficult to believe that appellant would have paid an amount of Rs.1,50,000/- to the accused. 4. It has come out from the evidence of PW1 that he did not know anything about the details of the family of the accused and that he had not even visited the house of accused. His evidence also reveals that he did not accept any security while paying the huge amount of Rs.1,50,000/- to the accused. The trial court also took note of the fact that as per evidence of PW1, instead of the accused going to the house of complainant, the latter himself went to the house of accused to pay the amount, which does not reconcile with the normal human conduct. The relevant observations are in paragraph 11 as follows : “PW1 would say that he acquainted with the accused about four years back through one of his friend. He again deposed that he do not know the name of the institution wherein the accused is working. Further he do not know how many members are there in the family of the accused. He again deposed that he never Crl.L.P.No.40/11 3 visited the house of the accused. The said evidence of PW1 is more than sufficient to hold that the accused is a stranger to him. As such, it is very difficult to believe that the complainant advanced a sum of Rs.1,05,000/- to the accused. It has come out in evidence that the complainant is doing textile business at Perambra. His case is that he come over to Calicut and paid the alleged amount to the accused. It may be noted that the accused was the person in need of money. The common conduct is that the person in need of money will go to the creditor to accept it. If the complainant is so generous to give a sum of Rs.1,05,000/- to the accused, whose bio-data is not known to him, he could very well invite him to Perambra to advance it.” 5. The trial court also found that as per the evidence, the petitioner gave money on an undertaking by accused that the amount will be paid after two months. The amount was paid in February and the amount was to be repaid only in April. But, the cheque is dated 30.3.2007. Hence, the court found that it is improbable that the cheque will be issued even before the due date. I shall quote the relevant findings of the trial court as hereunder : “At this juncture it is important to note that the date which Ext.P1 cheque bears is 30.3.07. During cross examination PW1 deposed that the alleged amount was advanced on 25.2.07. As such, even according to the complainant the Crl.L.P.No.40/11 4 accused had to repay the amount by 25.4.07. But the date which Ext.P1 cheque bears is 30.3.2007, i.e. prior to the date of agreed repayment. The complainant is conspicuously silent about the fact that what was the circumstances to issue a cheque bearing a date prior to the agreed date of repayment. The complainant has no case that he had demanded for the amount prior to the agreed date of repayment. While in the box, the specific case of the complainant is that the accused borrowed the alleged amount on 25.2.07 on condition to repay it within two months and he did not keep his promise. As such after the expiry of the agreed date of repayment, he approached the accused to demand the amount and at that time he told him to present the cheque. Since the alleged amount was borrowed on 25.2.07 with an undertaking to repay it within two months, in ordinary circumstance there was no necessity to issue a cheque bearing a date prior to the said period. There is no explanation has been given by the complainant regarding the same.” 6. The petitioner also examined PW2 to support his case, but his evidence on the relevant aspects are contradictory to the evidence given by petitioner. While PW1 stated that the cheque was issued at the time of advancing the money, PW2 stated that it was issued on a subsequent date, it is noted by the trial court. The trial court also noted certain discrepancies in the circumstances under which the cheque was allegedly Crl.L.P.No.40/11 5 executed. On a whole, I do not find that petitioner has proved his case and the trial court has correctly analysed the evidence and come to such a finding. 7. Learned counsel for petitioner vehemently contended that the case of the accused has not been probabilised. DW1 is an interested witness and these facts are brought out in evidence, it is submitted. The trial court was carried away by the evidence of DW1 and that is the reason why the evidence of complainant was disbelieved, it is submitted. It is also pointed out that though the cheque is dated 30.3.2007, it was presented only in April. On going through the findings of the trial court, I do not find any reason to interfere with the same, on the grounds urged. Hence, I am not inclined to grant leave. This petition is dismissed. K.HEMA, JUDGE. tgs