IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 Crl.L.P..No. 266 of 2011() -------------------------- CRA.553/2008 of ADDL.SESSIONS COURT (ADHOC-III),N.PARAVUR ST.5561/2005 of J.M.F.C.-II, ALUVA .................... PETITIONER/1ST RESPONDENT/COMPLAINANT --------------------------------------------------------- V.K.RAJENDRAN,KAMALAKSHAN,VALLAPPILLIL H CHERIYAPALLAMTHURUTHU MURI,PARUR VILLAGE(FOR & ON BEHALF OF THE FIRM CHENDRAMANGALA UNIT KERALA VYAPARI VYAVASAI EKOPANA SAMITHI) REP.BY THE PRESENT SECRETARY K.J.AJITHKUMAR,S/O.JAGADEESAN, KALATHILPARAMBIL,MURAVANTHURUTHU KARA,PARUR TALUK BY ADV. SRI.P.K.SAJEEV RESPONDENT(S): ACCUSED AND STATE OF KERALA ------------------------------------------ 1. K.T.VARKEY,AGED 51 YEARS,KOLENCHERY HOUSE, KIZHAKKUMPURAM, CHENDAMANGALAM P.O. NORTH PARUR. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.G.SANTHOSH KUMAR (P). FOR R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------------- Crl.L.P. No. 266 of 2011 ----------------------------------------------------- Dated this 31st March, 2011 ORDER This petition is filed for grant of leave for filing an appeal against an order of acquittal. 2. The appellant filed a complaint on behalf of a Society alleging offence under Section Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') against the first respondent. As per the allegations in the complaint, accused owed an amount of Rs. 15979/- to the complainant and for discharge of the same, Ext.P1 cheque was issued. On presentation of the cheque before the bank, it was dishonoured on the reason “account closed”. A lawyer notice was issued to the accused but he did not pay the amount though the notice was served. Hence, the complaint. 3. Evidence in this case consists of the oral testimony of PW1 and Exts.P1 to P3. Accused did not adduce any evidence. The accused took up a contention that PW1 had personal [Crl.L.P.266/11] 2 knowledge about the transaction. There was no legally enforceable debt between petitioner and first respondent etc. The trial court rejected this contention and convicted first respondent. In appeal, learned Additional Sessions Judge accepted the contentions raised by the first respondent and acquitted the accused. 4. Learned counsel for petitioner submitted that the acquittal order was passed only for the reason that ledger was not produced. PW1, in fact, was giving evidence after noting the details from the ledger. So, an opportunity may be given for producing the ledger and proving the case, it is submitted. It is also submitted that PW1 has given all the details regarding the transaction and execution of cheque in his evidence and thereby he has proved the evidence against first respondent. 5. On going through the impugned oder and on hearing petitioner's counsel, I find that, though PW1 has given evidence before the court regarding the transaction and execution of cheque, it is clear from his evidence that he has no direct knowledge about the relevant facts. This fact was brought out [Crl.L.P.266/11] 3 in cross-examination. It is needless to say that oral evidence must be direct and in accordance with section 60 of the Evidence Act. The evidence of PW1 does not constitute direct evidence regarding the relevant facts. PW1 is the only witness who was examined by the prosecution. The court in paragraph 9 of the judgment made the following observations: “The cross-examination of PW1 would show that he does not know any of the details regarding the alleged transaction between the complainant firm and the accused/appellant. Though he denied when it was suggested to him that no amount was due to the complainant/respondent, he is not in a position to give more details regarding the transaction. It is to be mentioned herein that from the admissions made by PW1 in his cross- examination, it can be seen that the complainant firm is not a registered firm and the complainant has not in fact made out a clear case against the appellant that he has borrowed the amount and that Ext.P1 cheque was issued to the complainant for discharging that debt that is due to the complainant/respondent from the appellant...” 6. I do not find any reason to reverse the above findings. Those findings are only reasonable and not perverse. The trial court also observed that it is very clear that the affidavit filed by PW1, who is the present secretary of the complainant-Society that the affidavit contains facts which are not known to him. [Crl.L.P.266/11] 4 The solitary evidence of PW1 does not show the details of the actual transaction between complainant and the accused. PW1 was not in a position to give any details of the transaction and he could not say what amount first respondent has paid, since first respondent had paid a portion of the amount. 7. PW1 admitted that appellant repaid some amount and it was not adjusted in the amount covered by the cheque. It was in these circumstances, appellate court was right in acquitting the accused. I do not find any ground to interfere with the order of acquittal or the findings entered into by the court below. Petition is dismissed. K.HEMA, JUDGE. krs.