IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND JULY, 2011 / 31ST ASHADHA 1933 Crl.L.P..No. 570 of 2011 ------------------------------- (ST.316/2009 of JUDICIAL FIRST CLASS MAGISTRTE COURT-II, PATHANAMTHITTA) .................... PETITIONER/COMPLAINANT: ------------------------------------------ MUTHOOT VEHICLE AND ASSET FINANCE LTD., MUTHOOT CHAMBERS,2ND FLOOR,KURIAN TOWERS,BANERJI ROAD,EKM.FORMERLY KNOWN AS MUTHOOT LEASING AND FINANCE LTD.,REP. BY ITS P/A.HOLDER SREEDEVI RADHAKRISHNAN,AGED25, D/O.LATE P.B.RADHAKRISHNAN, PAYYAPPILLY HOUSE,ALIYAR ROAD,MALIPURAM.P.O.,COCHIN-1. BY ADV. SRI.SABU S.KALLARAMOOLA RESPONDENTS(S): ACCUSED -------------------------- 1. SAINABA, PUTHENVEEDU, PEZHUMPARA.P.O., VADASSERIKKARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 22/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 570 of 2011 ---------------------------------------- Dated this the 22nd day of July, 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 acquitted the accused in his complaint under Section 255(1) of the Cr.P.C. 2. The case of the petitioner/complainant is that the accused, who is a lady, issued Ext.P2 cheque towards the discharge of a liability of Rs.15,200/-, but when the above cheque was presented for encashment dishonoured due to insufficiency of fund in the account maintained by the accused and the cheque amount was not paid in spite of the statutory notice issued in this regard and accepted by her. Therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. 3. With the above allegation, the complainant approached the Judicial First Class Magistrate Court-II, Pathanamthitta by filing a CRL.R.P.NO.570 of 2011 :-2-: complaint upon which cognizance was taken for the offence under Section 138 of the N.I.Act and during the trial, PW1 was examined for and on behalf of the complainant and Exts.P1 to P10 were marked. While concluding the trial, the learned Magistrate has found that Ext.P2 cheque was not drawn in discharge of any legally enforceable debt by the accused and accordingly, found that the accused is not guilty of the offence under Section 138 of the N.I.Act, and accordingly, he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and the order of acquittal, are proposed to be challenged by filing an appeal for which the special leave of this Court is sought for under Section 378(4) of Cr.P.C. 4. I have heard Sri.Sabu.S.Kallaramoola, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court, which is sought to be challenged. 5. The fact, which is beyond dispute, is that the accused was the first guarantor of the loan transaction connected with the purchase of the vehicle for the son of the accused. The cheque was issued by the accused on 23.9.2008 as per the contention of PW1. The vehicle was surrendered CRL.R.P.NO.570 of 2011 :-3-: in May,2008 and it was sold in September,2008 for Rs.25,000/-. According to PW1, the cheque was issued by the accused towards full and final settlement of the loan transaction. It is also the version of PW1 that the vehicle was sold on 16.9.2008 and the sale proceeds were credited to the loan account, in which the instalments are due from 7.11.2007 till 7.11.2008. Thus, according to PW1, Ext.P2 cheque was issued towards the discharge of the outstanding liability, out of the loan availed of by the son of the accused. The specific defence taken by the accused by filing a statement under Section 313 of Cr.P.C. is to the effect that no amount was due to the complainant from her and no cheque was issued as alleged and the complainant took away the bike belonging to the son of the accused and obtained blank cheque leaves signed by her under threat. According to the accused, the present case was filed misusing the said cheque leaf. It is true that no evidence is adduced from the side of the defence. 6. In the light of the facts and circumstances involved in the case and the evidence on record and in the light of the contention raised by the learned counsel for the petitioner, the question to be considered is whether CRL.R.P.NO.570 of 2011 :-4-: 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. 7. In the present case, the specific case of the complainant is that Ext.P2 cheque was issued towards the discharge of the outstanding liability connected with the loan availed of by the son of the accused. The amount shown in the cheque is Rs.15,200/-. The trial court has specifically found that according to PW1, the loanee has paid a sum of Rs.23,000/- in cash and the vehicle was sold for Rs.25,000/- and therefore, there should be a credit of Rs.48,000/- towards the loan account. But, it is also found that as per Ext.P8, the total credit is only Rs.41,751/-. So, according to the learned Magistrate, as there is glaring difference regarding the credit, the case of the complainant is under doubt and Ext.P8 cannot be acted upon. According to the learned Magistrate, as per Ext.P9, the outstanding liability as on 4.6.2008 is Rs.38,530/- and therefore, if credit of Rs.25,000/- is given as on 16.9.2008, the balance would be Rs.13,530/-. So in order to make up the above mistake, it is the claim of the CRL.R.P.NO.570 of 2011 :-5-: complainant that travelling expense was also due from the accused for which a separate account is maintained. But, connected with the claim of travelling expense, no such account or any fact was stated in the complaint or submitted during the deposition of PW1. Under that circumstances, the accused filed a petition under Section 91 of the Cr.P.C. requiring the complainant to produce those accounts. Though a statement of account was produced before the learned Magistrate, the same cannot be accepted as the same was not properly certified. So, the complainant did not take any earnest effort to produce the duly certified statement of accounts to prove the amount due to the complainant towards the travelling expenses. The above facts, according to the learned Magistrate, will go against the complainant, especially in the light of the decision reported in Perumal.A.M v. M/s.Star Tours and Travels (India) Ltd. and another (2010(2) KLD 153). Under the above circumstances, the trial court, after considering Ext.P8, came to the conclusion that the substantial evidence of PW1 is contradictory to the statement of account produced and found against the complainant and therefore, the trial court opted to accept the CRL.R.P.NO.570 of 2011 :-6-: explanation offered by the accused. 8. In the light of the materials and evidence referred to in paragraph 6 of this order, according to me, the learned Magistrate is perfectly justified in holding that Ext.P2 cheque was not drawn in discharge of any legally enforceable debt by the accused . As correctly held by the learned Magistrate, in the given facts and circumstances, the case of the accused appears to be more probable. Under the above factual and legal background, I am of the view that even an appeal is entertained, there is no scope for interfering with the order of acquittal recorded by the learned Magistrate under Section 255(1) of the Cr.P.C. and therefore, the above Criminal Leave Petition is devoid of any merit. In the result, this Criminal Leave Petition is dismissed. V.K.MOHANAN, Judge MBS/ CRL.R.P.NO.570 of 2011 :-7-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 CRL.R.P.NO.570 of 2011 :-8-: ORDER Dated:23.6.2011