IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD AUGUST 2011 / 12TH SRAVANA 1933 Crl.L.P..No. 682 of 2011() -------------------------- AGAINST THE ORDER DATED 16/06/2011 IN (CC 880/2009) IN ST.54/2010 of J.M.F.C.-II, VADAKARA .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ P.ASOKAN, S/O.KUMARAN, 54 YEARS, THAMB HOUSE (KIZHAKKAYIL), PAZHANKAV, VATAKARA AMSOM DESOM, (PO) VATAKARA-4, VATAKARA TALUK. BY ADV. SMT.SMITHA GEORGE SMT.SARITHA DAVID CHUNKATH RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. P.P.SASEENDRA KUMAR, 48 YEARS, S/O.KELAPPAN, INDHIVARAM HOUSE (PUTHEN PURAYIL), CHERUSSERY ROAD, NATAKKUTHAZHA AMSOM, PUTHOOR DESOM, PUTHOOR(PO), VATAKARA TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.682 of 2011 -------------------------------------------- Dated this the 3rd day of August, 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. Smitha George, 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 borrowed an amount of Rs.13,000/- from his own mother namely, one Rohini, but they were not in good terms. Therefore, the mother of the accused approached the complainant, who in turn contacted the accused and thus the accused requested the complainant to pay the amount to the mother promising that there would be a sufficient amount in his account since 1.7.2009, the accused had issued a cheque for Rs.13,000/-, which when presented for encashment, dishonoured as there was no sufficient funds in the account maintained by the accused and Crl. L.P.NO.682 of 2011 2 the cheque amount was not paid in spite of the demand notice and thus, according to the complainant the accused was convicted the offence u/s.138 of the NI Act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court-I, Vatakara, wherein cognizance was taken upon the complaint preferred by the complainant and instituted CC No.880/2009. Subsequently, the case was made over to the present trial court, wherein the case is re-numbered as ST No.54/2010. During the trial, the complainant himself was examined as PW1 and produced Ext.P1 to P6 documents. No evidence either oral or documentary produced from the side of the defence. Based upon the available materials and evidence on record, the trial court has found that there is no evidence to substantiate the transaction claimed by the complainant and also there is no evidence to show the execution of the cheque. In the light of the above findings, the trial court has found that accused is not guilty u/s.138 of the NI Act and accordingly, 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. Crl. L.P.NO.682 of 2011 3 4. As I indicated earlier, the trial court has specifically found that the complainant has no case that the liability claimed by him is connected with any direct transaction with the accused. It is further found that in the complaint as well as in the chief affidavit, the claim was that when the amount could not be obtained from the accused, complainant raised the amount of Rs.13,000/- by himself and paid to the mother of the accused. It is pertinent to note that the trial court has also found that though the case of the complainant in the complaint as well as in the chief affidavit that he had raised the amount and paid to the mother after dishonour of the cheque, during cross-examination, PW1 clarified that the accused had asked him to pay the amount, promising that he would returned the same. After considering the evidence of the complainant, the trial court has also found that the mother of the accused was not examined by the complainant to prove the fact that the mother has received the amount from the complainant in terms of the transaction claimed by the complainant. The trial court has also found that the complainant is a pensioner drawing monthly pension of only Rs.1700/- and though he had claimed that he had borrowed from one K.P.Sasi and from the son of the complainant, these Crl. L.P.NO.682 of 2011 4 witnesses were not examined and thereby the source was not proved. Thus, according to the learned Magistrate, the transaction as well as the execution of the cheque are not proved by the complainant. 5. The learned counsel for the petitioner vehemently submitted that, the evidence of PW1 alone is sufficient to prove the transaction especially, when the accused has not issued any reply to the statutory notice. It is also the submission of the learned counsel that the accused did not dispute the signature that contained in Ext.P1 cheque. Therefore, according to the learned counsel the order of acquittal recorded by the trial court is incorrect and illegal and liable to be set aside. 6. In the light of the facts and circumstances involved in this case, and in view of the findings of the learned Magistrate and particularly in the light of the contention raised by the learned counsel for the petitioner, the question to be considered is whether the petitioner has succeeded in making out a case to grant special leave u/s.378(4) of Cr.P.C for filing an appeal against the judgment of the trial court. 7. In the present case, as rightly observed by the learned Magistrate, the case of the complainant is that he had paid a sum Crl. L.P.NO.682 of 2011 5 of Rs.13,000/- to the mother of the accused, which already due from the accused to his mother and towards the discharge of the said liability, the accused issued Ext.P1 cheque in favour of the complainant. Thus according to the complainant the accused issued Ext.P1 cheque to discharge the liability that due to the complainant which arose on clearance of the liability by the complainant, which was due to the mother of the accused from the accused. Except the deposition of PW1, absolutely there is no independent evidence to prove the transaction claimed by the complainant. The trial court is absolutely correct in its finding that there is no payment of money by the complainant to the accused. There is also evidence from the side of the prosecution to show that the complainant had paid the amount of Rs.13,000/- to the mother of the accused. In the light of the claim of the complainant, the best evidence, to substantiate such claim of the complainant would have been the deposition of the mother of the accused. But the complainant did not examine the said person. If the version of PW1, that the accused and his mother is in inimical terms is correct, then in the event of examination of the mother of the accused, she would depose before the court, regarding the true affairs which would have been in favour of Crl. L.P.NO.682 of 2011 6 the complainant and certainly against the accused. But the complainant has not examined such other witness. Thus absolutely no evidence to prove the liability that arose connected with the transaction claimed by the complainant. 8. The trial court has also found that, though the complainant is a pensioner drawing a monthly pension of Rs.1700/- he has not produced any evidence to prove his source to pay such amount to the mother of the accused. The paucity of evidence from the part of the complainant to prove the payment of Rs.13,000/- to the mother of the accused and regarding the source of the complainant, the same will go against the complainant and therefore, the trial court is correct in its finding that the complainant has failed to prove the execution of Ext.P1 cheque and the transaction as claimed by the complainant. Though Ext.P1 cheque contained the signature of the accused the said fact is not sufficient to draw the presumption u/s.139 of NI Act in favour of the complainant unless the complainant establish the transaction and the execution of the cheque and passing of consideration. 9. In the light of the above facts, circumstances and the discussion, according to me, even though an appeal is Crl. L.P.NO.682 of 2011 7 entertained, there is no scope for any interference with the findings of the learned Magistrate and the order of acquittal recorded by the trial court. As the petitioner has failed to make out any compelling and substantial reason to disturb the double presumption of innocence available in favour of the accused in the light of the order of acquittal cannot be reversed also. Therefore, the complainant/petitioner has miserably failed to make out a case to grant special leave u/s.378(4) of Cr.P.C. In the result, this petition is devoid of any merit and accordingly, the special leave u/s.378(4) of Cr.P.C is declined and the leave petition is dismissed. V.K.MOHANAN, JUDGE. pm/