IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH SEPTEMBER, 2011 / 7TH ASWINA, 1933 Crl.L.P..No. 875 of 2011 ------------------------------- (ORDER DATED 16.6.2011 IN CC.642/2008 of ADDL.CHIEF JUDICIAL MAGISTRATE .(E&O), ERNAKULAM) .................... PETITIONER/COMPLAINANT: ------------------ THE RASHTRA DEEPIKA LTD., PALARIVATTOM, KOCHI, REPRESENTED BY SINSON ALEX, THE POWER OF ATTORNEY HOLDER OF ITS MANAGING DIRECTOR. BY ADV. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN RESPONDENTS(S)/ACCUSED: -------------------------- 1. SAJU ENAI, ENAI HOUSE, EDAKUNNU.P.O, KARUKUTTY, ANGAMALY, ERNAKULAM DISTRICT, PIN 683 576.. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 875 of 2011 ---------------------------------------- Dated this the 29th day of September, 2011 O R D E R 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 the Cr.P.C. 2. The case of the complainant is that the accused was indebted to the complainant, who is a Printer and Publisher of daily News Paper in the name and style “Deepika and Rashtra Deepika Ltd.”, for a sum of `.10,720/-, in connection with certain advertisements made by the complainant in favour of the accused. Towards the payment of the said amount, the accused issued three cheques for `.1000/-, `.1219/- and `.8501/-. When the same were presented for collection, CRL.L.P.NO.875 of 2011 :-2-: dishonoured due to insufficiency of fund in the account of the accused and the accused has not repaid the cheque amount in spite of the statutory notice and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, by filing a complaint, the complainant approached the court of Additional Chief Judicial Magistrate (EO), Ernakulam whereupon C.C.No.642 of 2008 was instituted and during the trial of the case, PW1 was examined on behalf of the complainant and Exts.P1 to P8 documents were produced. No evidence either oral or documentary was produced on behalf of the defence. The trial court, after consideration of the entire evidence and materials, has held that the evidence adduced by the complainant in this case is not in respect of the dishonour of the cheques referred to in paragraph 2 of the complaint and accordingly, held that the complainant has miserably failed in establishing that the accused executed and issued the cheques as mentioned above in favour of the complainant for the discharge of an amount of `.10,720/- and accordingly, the accused was acquitted. CRL.L.P.NO.875 of 2011 :-3-: It is the above finding and order of acquittal proposed to be challenged by filing a criminal appeal, for which leave of this Court is sought under Section 378(4) of the Cr.P.C. 3. I have heard Sri.Julian Xavier, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 4. Counsel for the petitioner strenuously submitted that the trial court is wrong in its finding that the complainant failed in establishing the execution and issuance of three cheques since, according to the learned counsel, the mistake, that pointed out by the learned Magistrate of the court below, was due to the lapse on the part of the counsel, who appeared for the appellant in the trial court. According to the learned counsel, because of the lapse on the part of the counsel in the trial court, Exts.P3 and P3(a) cheques were marked and the amounts covered therein are connected with some other transaction, and not connected with the transaction claimed by the complainant in the present case and hence, it is submitted that an opportunity may be given to the complainant to adduce correct evidence. CRL.L.P.NO.875 of 2011 :-4-: 5. In the light of the above submission of the counsel for the petitioner itself, it is beyond dispute that the learned Magistrate is fully justified and correct in his finding that the proof affidavit filed by the complainant and the documents produced during the trial are related to two cheques of `.5100- and `.7225/- , whereas the subject matter of the complaint is with respect to the dishonour of three cheques for the amounts of `.1000/-,`.1219/- and `.8501/-. Therefore, it can be safely concluded that the evidence adduced by the complainant is not in terms of the allegation in the complaint and to substantiate the claim raised in the complaint. That being the position, even if the appeal is entertained, there is no scope for any interference with the findings of the court below and there is no substantial and compelling reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. Therefore, the petitioner is not entitled to an order, as sought for in this leave petition filed under Section 378(4) of the Cr.P.C. CRL.L.P.NO.875 of 2011 :-5-: In the result, there is no merit in the Crl.L.P. and accordingly, the same is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.875 of 2011 :-6-: In the light of the claim of the complainant and the defence and the materials and evidence on record and particularly the findings of the court below, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255(1) of Cr.P.C. Thus, according to me, the said conclusion and findings are fully justified and no interference is warranted, even in case an appeal is entertained against the above finding and the order of acquittal and there is no substantial ground to reverse the order of acquittal. There is no compelling or substantial reason to interfere with the order of acquittal recorded by the learned Magistrate. Therefore, the petitioner has miserably failed to make out a case to grant special leave under CRL.L.P.NO.875 of 2011 :-7-: Section 378(4) of Cr.P.C. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.875 of 2011 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 CRL.L.P.NO.875 of 2011 :-9-: