IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 Crl.L.P..No. 633 of 2011() -------------------------------- (AGAINST THE JUDGMENT IN ST.1750/2008 of THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-II, PATHANAMTHITTA) .................... PETITIONER/COMPLAINANT: ------------------------------------------ SREELATHA SAJEEV, SREERAGAM, MALLASSERRY P.O., PRAMADAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT/ACCUSED & STATE -------------------------------------------------- 1. PREASY ABRAHAM, CHALUMKAROTTU PREEMA BHAVAN, COLLEGE JUNCTION, MAKKAMKUNNU, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL FOR R2. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 27/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.L.P.No. 633 of 2011 ---------------------------------------- Dated this the 27th 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 of this Court 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, acquit the accused under Section 255 (1) of the Cr.P.C. 2. Heard Sri.M.T.Suresh Kumar,learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 3. The case of the complainant is that the accused borrowed a sum of `.50,000/- and towards the discharge of the said liability, she issued Ext.P1 cheque dated 10.7.2008 for an amount of `.50,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the said CRL.L.P.NO.633 of 2011 :-2-: amount was not paid in spite of a statutory notice received by the accused and therefore, the accused has committed an offence punishable under Section 138 of the N.I.Act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court-II, Pathanamthitta by filing a complaint whereupon cognizance was taken for the offence under Section 138 of the N.I.Act and instituted S.T.No.1750 of 2008. During the trial, the complainant herself was examined as PW1 and produced Exts.P1 to P5. From the side of the defence, besides the accused, DW2 was also examined. Exts.D1 to D3 documents were also produced. Finally, the learned Magistrate has concluded that Ext.P1 cheque was not drawn and issued by the accused in discharge of a legally enforceable debt due to the complainant. It is the above finding and the consequent acquittal of the accused sought to be challenged by way of appeal for which the present leave petition is filed seeking special leave of this Court under Section 378(4) of Cr.P.C. 4. Going by the judgment of the trial court, it can be seen that CRL.L.P.NO.633 of 2011 :-3-: the specific defence taken by the accused is to the effect that she did not execute and issue any cheque in favour of the complainant since there was no liability to be cleared off. On the other hand, according to the defence, Ext.D1 cheque was one of the cheque leaves entrusted with the complainant when she joined and subscribed for one of the chitties conducted by the complainant and it is the said cheque leaf misused for filing the present complaint. The learned Magistrate, after considering the entire evidence and materials, found that the failure of the complainant to produce the documents sought to be produced under Section 91 of the Cr.P.C. would show the falsity of the claim of the complainant and also held that the testimony of PW1 rendered as unworthy of credence. The trial court has also found that as per Exts.D1 and D2, the chitty transaction between the complainant and the accused was not closed, which will further go against the claim of PW1 that the chitty was closed. On the basis of the above evidence, the trial court has further found that the accused has succeeded in establishing a probable case and she had rebutted the presumption CRL.L.P.NO.633 of 2011 :-4-: under Section 139 of the N.I.Act. 5. Learned counsel for the petitioner vehemently submitted that the reply notice sent by the accused has not been produced and no evidence is produced to show that Ext.P1 cheque is the one, which is entrusted with the complainant towards the chitty transaction. According to the learned counsel, the non-production of the records connected with the chitty transaction is not a ground to disbelieve or discard the case of the complainant and to enter into a finding in favour of the accused. In the light of the above referred materials and findings of the court below and especially in view of the contentions raised by the learned counsel, 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. 6. On a scanning of the judgment sought to be impugned, it can be seen that to substantiate the case of the complainant, the only evidence is that of PW1 and the other documentary evidence produced by the CRL.L.P.NO.633 of 2011 :-5-: complainant is with respect to the dishonour of cheques etc. and demand. 7. In the light of the specific plea taken by the defence, it is to be considered that whether the evidence of PW1 is sufficient to substantiate the claim put forward by the complainant that Ext.P1 cheque was issued towards the discharge of the liability that is due to the complainant from the accused. Absolutely, no evidence is adduced by the complainant to prove the transaction, which is claimed by the complainant, by which the accused borrowed `.50.000/- and towards the said liability, the accused had issued Ext.P1 cheque. On the other hand, the specific case of the defence is to the effect that the cheque in question is one which is entrusted with the complainant when herself subscribed chitty in November,2006. It is also the evidence of DW1/the accused that she had received the chitty amount on 4.8.2007. She had also produced Exts.D1 passbook and D2 postal receipt, to substantiate the chitty transaction. Exts.D1 and D3 are the passbooks of the chitty conducted by the complainant. Though PW1 has claimed that the chitty transaction is closed, the said claim is disproved and as per Exts.D1 and D3, it is further proved that the chitty transaction was not closed. So, on the basis of the CRL.L.P.NO.633 of 2011 :-6-: above evidence, the learned Magistrate has held that the claim of the complainant is doubtful that `.50,000/- was lent to the accused again on 5.5.2008. The complainant has also failed to produce any documents connected with the chitty transaction. In the absence of any evidence regarding the claim of the complainant that the accused has borrowed `.50,000/- and towards the discharge of the said liability, Ext.P1 was issued, I am of the view that the learned Magistrate is fully justified in opting the evidence of Dws.1 and 2 supported by the documentary evidence of the defence to hold that the case of the defence is more probable. Therefore, even in case an appeal is entertained, according to me, there is no scope for any interference with the order of acquittal recorded by the trial court and therefore, there is no merit in the leave petition. Accordingly, this Criminal Leave Petition, as the same is devoid of any merit, is dismissed. V.K.MOHANAN, Judge MBS/ CRL.L.P.NO.633 of 2011 :-7-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 CRL.L.P.NO.633 of 2011 :-8-: ORDER Dated:23.6.2011