IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Crl.L.P..No. 692 of 2011() -------------------------- CC.133/2010 of J.M.F.C.,IRINJALAKUDA ................... PETITIONER/COMPLAINANT ------------------------------------------ SAFE GUARD CHITTIES PVT. LTD., REG. OFFICE NO. T.C.35/4859, N.P.COMPLEX, MANNATH LANE, M.G.ROAD, THRISSUR, REP. BY ITS CHAIRMAN, JOHNSON, S/O.VELLANIKKARAN DEVASSY, MAVINCHODU DESOM, KALLUR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT(S): ACCUSED ---------------------- 1. ANANDAN, S/O.VELAYUDHAN, OTTAYIL HOUSE, MUPLIYAM VILLAGE, MUPLIYAM P.O. 680312. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031 PUBLIC PROSECUTOR SRI. P.A. SALIM FOR R2 THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Crl.L.P. No. 692 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2011 ORDER The complainant in a prosecution for the offence under Section 138 of the N.I Act is the petitioner herein, who seeks special leave of this Court under Section 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 under Section 255(1) of Cr.P.C. 2. The case of the complainant is that the complainant company was conducting kuri business and the accused joined as a subscriber and prized the chitty amount and when he defaulted in paying the instalments towards chitty amount the accused issued Ext.P1 cheque dated 10.11.09 for an amount of Rs.47,250/- (rupees forty seven thousand two hundred and fifty only) and when the said cheque presented for en-chashment the same was dishonoured as there was no sufficient fund in the account and according to the complainant though a statutory notice was issued to the accused, but Crl.L.P.No.692 of 2011 : 2 : no amount was paid in spite of receipt of such notice. Therefore, according to the complainant, the accused has committed the offence under Section 138 of N.I. Act. With the above allegation the complainant approached the Court of Additional Munsiff/Judicial First Class Magistrate, Irinjalakuda by filing a complaint whereupon cognizance was taken for the said offence and instituted C.C. 133/2010. During the trial, PW1 was examined from the side of complainant and Ext.P1 to P7 were marked. From the side of the defence though no witness was examined, Ext.D1 and D2 were marked. After consideration of the entire evidence and materials on record the trial court has found that the complainant has not proved the execution of Ext.P1 by adducing convincing evidence and further found that accused has not issued Ext.P1 cheque in discharge of liability towards the complainant. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the petitioner seek leave of this Court under Section 378(4) of Cr.P.C. 3. I have heard Sri. Rajesh Chakyat, learned counsel Crl.L.P.No.692 of 2011 : 3 : appearing for the petitioner. I have also carefully perused the judgment of the trial court. 4. The trial court after evaluation of evidence has found that the case of the complainant in the complaint as well as in the affidavit filed in lieu of the chief examination is that the accused is one of the subscribers of the chitty conducted by the complainant. Towards the discharge of the liability that arose connected with such chitty transaction, the accused issued ext.P1 cheque and the same was dishonoured and therefore, the accused has committed the offence under Section 138 of the N.I. Act. But when PW1 was examined, he deposed deviating from the averment in the complaint and against the evidence adduced through the affidavit and went to the extend to deposed that the accused was the surety for one Sunny who had chitty transactions with the complainant. The trial court has also found that more probable case is that of defence taken by the accused and such a conclusion was arrived on the basis of the finding that kurri was terminated on 6.11.09 and Ext.P1 cheque was issued on 11.10.2009. It is the above factual evidence which lead Crl.L.P.No.692 of 2011 : 4 : the learned magistrate to hold that the accused had not issued Ext.P1 cheque in discharge of any liability due to the complainant. 5. The learned counsel for the petitioner vehemently submitted that the available materials and evidences would show that the accused is liable, to pay the cheque amount to the complainant, connected with the chitty transaction either being a subscriber of kuri or being a guarantor of the actual subscriber of the kuri. It is also the submission of learned counsel that there is no dispute against the signature contained in Ext.P1 cheque and therefore the trial court ought to have held that the cheque in question was issued towards the discharge of liability of the accused due to the complainant. Thus, according to the learned counsel the findings of the learned Magistrate and the consequent acquittal recorded in favour of the accused is liable to be interfered with. In the light of the above arguments of the learned counsel for the petitioner and in view of the findings of the court below, on the basis of materials and evidence on record, the question to be considered is whether the petitioner has made out a case so as to Crl.L.P.No.692 of 2011 : 5 : grant leave under Section 378(4) of Cr.P.C. 6. As I indicated earlier the allegation of the complainant is that the accused was one of the subscribers of chitty conducted by the company and when the chitty amount became due, the accused issued Ext.P1 cheque towards the discharge of such liability. But that cheque was dishonoured due to want of fund and therefore the accused has committed the offence punishable under Section 138 of N.I. Act. It is beyond dispute that the learned Magistrate took cognizance for the above offence on the basis of the above referred allegations. Though such a case put forwarded by the complainant in the complaint as well as in the chief affidavit filed in lieu of the chief examination, during the time of evidence and when PW1 was examined on behalf of the complainant, he had deposed before the court that the accused is not the subscriber of the chitty, but the actual subscriber is one Sunny and the accused was the surety to the said person and the accused issued the cheque towards the discharge of the liability that arose out of the suretyship. It is absolutely a new case set up by the complainant during the trial. It may be true that Crl.L.P.No.692 of 2011 : 6 : the accused, might have stood as surety in the chitty transaction between the complainant and any other person. But there is no evidence to show that the accused is a subscriber of the chitty conducted by the complainant and towards the discharge of the liability arising out of such transaction the accused had issued Ext.P1 cheque. The specific defence taken by the accused is that when he stood as surety for one Mr. Sunny, who entered into kuri transaction with the complainant, blank cheqes were obtained from him and one of such blank cheque leaves is misused in the present case by showing himself as the subscriber. The above version of defence appears to be more probable as held by the learned Magistrate. In a case where the offence alleged is under Section 138 of N.I. Act, the complainant will get the benefit of Section 139 of presumption only when the complainant or holder of cheque in due course or payee establish the execution and issuance of cheque and passing of consideration. Even in the event of establishing those facts the accused can rebutt the presumption by making out probable case. According to the learned Magistrate, for the reasons Crl.L.P.No.692 of 2011 : 7 : which I mentioned above, the accused has succeeded in making out a probable case and thereby rebutted the presumption. But there is no evidence adduced by the complainant to establish the allegations that contained in the complaint and or the claim raised in the chief affidavit and the evidence of Pw1 himself is against the complainant's case. Therefore, the learned Magistrate is fully satisfied in his findings and order of acquittal. In the light of the above facts, I am of the view that even an appeal is entertained, there is no scope for any interference either with the findings of the trial court or with the order of acquittal recorded by the learned Magistrate. Therefore, there is no scope for granting leave as sought for. In the result this Crl.L.P. is devoid of any merit and accordingly this petition is dismissed declining the request for leave under Section 378(4) of Cr.P.C. (V.K. MOHANAN, JUDGE) kp