IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 Crl.L.P..No. 858 of 2011() -------------------------- ST.2418/2007 of J.M.F.C.-II,PALAKKAD .................... PETITIONER/COMPLAINANT ------------------------------------------ SREENIVASAN, "YASODA", KONGAD, PALAKKAD DISTRICT. BY ADV. SRI.THOMAS T.VARGHESE SRI.N.SASI RESPONDENTS: STATE AND ACCUSED -------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KREALA, ERNAKULAM-682031. 2. SRI. N.R. RAJESH KUMAR, S/O. RAGHUTHAMAN, NELLISSERIYIL, AGALI, P.O.PALAKKAD, PALAKKAD DISTRICT-678001. R2 BY ADV. M/S .SIBY MATHEW , PHILIP J.VETTICKATTU & B.PREMNATH (E) R1 BY PUBLIC PROSECUTOR SRI P.A. SALIM. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 858 of 2011 ---------------------------------------- Dated the 27th September , 2011 ORDER 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 Cr.P.C. 2. The case of the complainant is that the accused owed a sum of Rs.50,000/- to the complainant, and on demand, the accused issued a cheque dated 8.8.2007 for an amount of Rs.50,000/- and the said cheque when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the accused failed to pay the cheque amount in spite of the statutory notice issued by the complainant and therefore the accused has committed the offence punishable under section 138 of the NI Act and with the said allegation, by filing a complaint, the complainant approached CRL.LP.858/11 2 the court of Judicial First Class Magistrate-II, Palakkad, based upon which cognizance was taken for the offence under section 138 of the NI Act and instituted S.T.Case No.2418 of 2007. During the trial of the case, the complainant himself was examined as PW1 and marked Exts.P1 to P4 documents from the side of the complainant. From the side of the defence, DW1 was examined and produced Exts.D1 to D3. After having considered the entire evidence and materials, the trial court came into the conclusion that the complainant's case is having high degree of improbability, and hence it is held that, the complainant failed to prove that the accused executed and issued Ext.P1 cheque. On the basis of the above finding, the trial court acquitted the accused. It is the above finding and order of acquittal sought to be challenged for which the petitioner seeks leave of this Court under section 378(4) Cr.P.C. 3. I have heard Sri.Thomas T. Varghese, the learned counsel appearing for the petitioner and Sri Siby Mathew, the earned counsel appearing for the 2nd respondent. I have also perused the judgment of the trial court. 4. The specific case of the complainant is to the effect that CRL.LP.858/11 3 the accused borrowed an amount of Rs.50,000/- from him and on demand for its payment, the accused executed and issued Ext.P1 cheque towards the discharge of the said liability. Whereas the case of the defence is that the complainant managed to obtain the said cheque book through one Manoj Kurian and forged the signature of the accused and filed the present case. In order to substantiate the allegation that raised by the complainant, the evidence available on record is that of the deposition of PW1, the complainant himself and Exts.P1 to P4. Ext.P1 is the cheque and Ext.P2 is the memo with respect to th dishoour of the cheque and Ext.P3, P3(a) and P4 are the documents connected with the statutory notice. The accused, besides examining DW1, the manager of the State Bank of India, produced Exts.D1, D2 and D3 documents. Ext.D1 is the letter dated 21.5.2007 sent by one Manoj Kurian to PW1 requiring PW1 not to misuse the cheque belongs to the accused. Ext.D1 letter is dated 21.5.2007. According to PW1, the amount was given to the accused on 21.6.2007, that was after the receipt of Ext.D1 letter. There is no dispute that, the complainant, when he was examined as PW1, admitted the CRL.LP.858/11 4 receipt of Ext.D1 letter. Ext.D2 letter dated 22.5.2007 issued by the accused was proved through DW1, the manager of S.B.I, Agali branch where the accused maintained his account to which Ext.P1 cheque is pertained. When DW1 was examined, he had deposed that the cheque in question was dishonoured not for the reason of insufficiency of funds but for the reason that the payment was stopped by the drawer. The said fact proved through PW1 and Ext.D3 letter is in tact and there is no challenge against the same. Ext.D2 letter was also proved through DW1 whereby the accused informed the Manager of State Bank of India that the cheque leaf Nos.109357 to 109370 were lost and the same shall not be entertained and honoured by the bank. It is on the basis of the above materials and evidence, the trial court has come into the conclusion that Ext.P1 cheque found its way into the possession of the complainant not in the circumstances as alleged by the complainant and the story put forth by the complainant regarding the execution and issuance of the cheque is under doubt, and the trial court finally found that the case of the complainant is having high degree of improbability and it was categorically found by the learned CRL.LP.858/11 5 Magistrate that the complainant failed to prove that the accused executed and issued Ext.P1 cheque to the complainant. The rial court has also found that as the complainant has miserably failed to prove the execution and issuance of the cheque, no presumption can be drawn in favour of the complainant under section 139 of the NI Act. In the absence of any positive evidence, especially in the light of Exts.D1 to D3 documents, and the evidence of DW1, according to me , the learned Magistrate is fully justified in his finding that the complainant has failed to prove that the accused executed and issued the cheque in question. 5. Counsel for the petitioner vehemently submitted that since the accused has not issued reply to the statutory notice and he failed to prove that the signature contained in Ext.P1 is a forged one, the findings of the learned Magistrate is incorrect and illegal. I am unable to sustain the above contention. As I indicated earlier, to prove the transaction as claimed by the complainant, there is no independent evidence other than the interested version of PW1. The materials on record shows that , even according to the complainant, when he released or CRL.LP.858/11 6 advanced the amount on 21.6.2007, before that he received Ext.D1 letter dated 21.5.2007, requiring PW1 not to misuse the cheque belongs to the accused. Further, the contemporary documents, i.e. Exts.D1, D2 and D3 would show that much before sending the statutory notice which is Ext.P3, the accused approached the bank authorities informing them regrading the loss of the cheque leaves including Ext.P1 and also requesting them not to honour such cheque leaves. It is under the above factual background and on the basis of such evidence, the trial count came into a conclusion that the story put up by the complainant with respect to the execution is under doubt. Therefore, according to me, no duty is cast upon the accused to establish the correctness of the signature that contained in Ext.P1 cheque, especially when the complainant miserably failed to prove the execution and issuance of the cheque under the particular factual background and evidence on record involved in this case. Therefore, I find no reason to interfere with the finding of the court below and order of acquittal even in case an appeal is entertained. Therefore the petitioner has miserably failed to make out a case so as to grant leave of this CRL.LP.858/11 7 court under section 378(4) Cr.P.C. In the result, there is no merit in this special leave petition and accordingly, the same is dismissed. V.K.MOHANAN, J UDGE kvm/- CRL.LP.858/11 8