IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH AUGUST, 2011 / 17TH SRAVANA, 1933 Crl.L.P..No. 679 of 2011 ------------------------------ (AGAINST THE JUDGMENT IN ST.2767/2004 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THRISSUR) .................... PETITIONER/COMPLAINANT: ------------------------------------------ M/S.MANAPPURAM GENERAL FINANCE & LEASING LTD., MANAPPURAM HOUSE, VALAPPAD P.O., THRISSUR, REPRESENTED BY JUNIOR ASSISTANT, A.V.UNNIKRISHNAN. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENTS(S): ACCUSED AND STATE -------------------------- 1. HARIKUMAR K.S., S/O.SUCHEENDRAN, KODAKKALAPARAMBA HOUSE, MALAPARAMBA P.O., CALICUT. 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 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 679 of 2011 ---------------------------------------- Dated this the 8th day of August, 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. According to the complainant, it is a Non-banking Finance company and the accused had taken on hire an ambassador car bearing Regn.No.KL.11.M.7209 on 5.5.2001 and as on 13.3.2004, the accused had to pay a sum of `.1,19,930/- and when the accused was demanded for the payment, the accused issued a cheque for `.1,19,930/-, which according to the complainant, when presented for encashment, was dishonoured as there was no sufficient fund in the CRL.L.P.NO.679 of 2011 :-2-: account maintained by the accused and the amount was not paid in spite of the statutory demand and thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.IAct. With the said allegation, the complainant approached the Judicial First Class Magistrate Court-II, Thrissur by filing a complaint based upon which cognizance was taken for the offence under Section 138 of the N.I.Act. 3. During the trial, Pws.1 and 2 were examined from the side of the complainant/company and Ext.P1 to P10 were marked. Though no witness was examined for the accused, Exts.D1 to D5 were produced and marked as defence exhibits. After having considered the evidence and materials, the trial court has come to a conclusion that there is no sufficient evidence to show that the cheque was issued by the accused towards the discharge of a legally recoverable debt and accordingly, held hat the accused is not guilty under Section 138 of the N.I.Act. It is the above finding and order of acquittal sought to be CRL.L.P.NO.679 of 2011 :-3-: challenged by filing an appeal for which the leave of this Court is sought under Section 378(4) of the Cr.P.C. 4. I have heard Sri.C.Valsalan, learned counsel appearing for the petitioner. I have also perused the judgment sought to be challenged. 5. Learned counsel for the petitioner vehemently submitted that the finding of the trial court that there is no sufficient evidence to show that the accused issued the cheque in question towards the discharge of the liability, is factually and legally incorrect and therefore, the order of the learned Magistrate is liable to be reversed. It is also the submission of the learned counsel that one of the grounds considered by the Magistrate to enter into the above finding is that during the cross-examination of PW2, the learned Magistrate has noticed that the witness had scribbled something in his palm and on verification, it was found that the details spoken by him was scribbled in the palm and therefore, the evidence of PW2 cannot be believed. Learned counsel further submitted that the evidence of Pws.1 and 2 CRL.L.P.NO.679 of 2011 :-4-: would clearly establish the transaction between the complainant/company and the accused and Ext.P2 cheque is really executed by the accused and there is no proper explanation from the accused as to how the same reached in possession of the complainant. Thus, according to the learned counsel, the findings arrived on by the court below are factually and legally incorrect. 6. On a perusal of the impugned judgment of the trial court, it can be seen that after considering the evidence on record, especially in the light of the deposition of Pws.1 and 2 and other documents, the learned Magistrate came to a conclusion that the complainant has no definite stand regarding the total amount, which is alleged to have due to the complainant from the accused and there is no concrete evidence to substantiate the case of the complainant. After considering the case of the complainant and the defence version, the learned Magistrate is of the opinion that the case of the accused is more probable and thus, came to a conclusion that the complainant has not adduced sufficient CRL.L.P.NO.679 of 2011 :-5-: evidence to show that the cheque is executed and issued by the accused. 7. In the light of the contention 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. 8. The crux of the prosecution allegation is that towards the final settlement of the amount due as per hire purchase agreement, the accused issued Ext.P2 cheque for an amount of `.1,19,930/- which amount, according to the complainant, was due as on 13.3.2004. The specific case taken by the accused is to the effect that he has not executed and issued the cheque in question and no such amount is due to the complainant and according to the accused, the cheque in question, was the one given as a security and the same is misused by CRL.L.P.NO.679 of 2011 :-6-: the complainant for the purpose of the present case. In support of the findings of the learned Magistrate, the learned Magistrate has referred to several materials and evidence which I do not propose to repeat hereagain. The learned Magistrate has specifically found that according to PW1, the accused issued the cheque on 13.3.2004 so as to discharge the liability as on 13.3.2004. The learned Magistrate has further found that PW1 has also deposed that in Ext.D3 plaint, it is stated that the cheque in question was issued on 30.5.2003. In Ext.D5 notice, the sum due was shown as `.1,19,930/- as on 30.10.2003. It is also recorded to the effect that the accused has remitted an amount of `.1,56,000/- and the vehicle was sold on 21.6.2003. It has also come out in evidence that the accused has filed Ext.D1 suit for rendition of account wherein the complainant has filed Ext.D2 written statement. But, the due amounts shown in Ext.D2 written statement and the amount claimed in Ext.D1 suit filed by the complainant are not tallying and the amount is shown differently. It is also in evidence to CRL.L.P.NO.679 of 2011 :-7-: the effect that though PW2 claimed that the accused came and executed the cheque in question in his presence, the name of the payee is shown in Ext.P2 cheque by affixing a rubber stamp. So the above version of PW2 is not acceptable to a prudent mind. It is also relevant to note that even according to PW1, he has no claim that he had seen the execution of the cheque. Thus in effect, there is no evidence regarding the execution and issuance of the cheque, whereas the defence version is that the cheque in question was one among the several cheques obtained by the complainant at the time of entering into hire purchase agreement. It is also relevant to note that in Ext.P2, as I indicated earlier, the name of payee is entered by using a rubber stamp, the signature is put in light blue ink and the amount and date are entered in dark blue ink. If the versions of Pws.1 and 2 are correct, there would not have such infirmities. Thus, according to me, the complainant has miserably failed to establish and prove the transaction, the execution and issuance of the cheque and the liability CRL.L.P.NO.679 of 2011 :-8-: of the accused. Thus, in the light of the above facts and circumstances, I am of the view that the finding of the learned Magistrate is absolutely correct and there is no scope for any interference. Thus, according to me, the said conclusion and findings are fully justified and no interference is warranted, even in case an appeal is entertained. 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 for the grant of special leave under Section 378(4) of Cr.P.C. In the result, this petition is devoid of any merit and accordingly the same is dismissed. . V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.679 of 2011 :-9-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.P.NO.679 of 2011 :-10-: O R D E R Dated:2. ..2011