IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 Crl.L.P..No. 917 of 2011() -------------------------- SPECIAL LEAVE TO APPEAL AGAINST THE ORDER OF ACQUITTAL IN ST.1526/2006 of J.M.F.C.,KOTTAYAM .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ ALEX C.CHANDY, CHILAMBATH HOUSE, VADAVATHOOR P.O., VIJAYAPURAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. JASMIN BABU, KOCHUPARAMBIL HOUSE, KOTTAYAM-10. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MATHEW PHILIP EDAPPALLIL FOR R1 PUBLIC PROSECUTOR SMT.LALIZA THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.917 of 2011 -------------------------------------------- Dated this the 13th day of October, 2011 ORDER The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this court u/s.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 u/s.255(1) of Cr.P.C. 2. The case of the complainant is that the accused and her husband borrowed Rs.3,00,000/- from the complainant on 24.12.2004 on executing a joint promissory note in favour of the complainant and they repaid half of the principal amount on 24.2.2006 and interest of the entire amount up to 24.2.2006 and it is the further case of the complainant that on the same date, i.e, on 24.2.2006 a cheque for Rs.1,50,000/- was given in favour of the complainant towards the payment of the balance amount after taking back the promissory note. When the said cheque presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused. According to the complainant, the accused has failed to pay the cheque amount in spite of the statutory notice and thus, the Crl. L.P.NO.917 of 2011 2 accused has committed the offence punishable u/s.138 of the NI Act. By filing a complaint raising the above allegation, the complainant approached the court of Judicial First Class Magistrate-I, Kottayam, whereupon, cognizance was taken and instituted ST No.1526/2006. During the trial of the case, the complainant himself was examined as PW1 and his son was examined as PW2. He had also produced Ext.P1 to P6 documents. From the side of the defence, DW1 was examined, who is none other than the husband of the accused. No document is produced. After considering the entire evidence and materials, the trial court has held that the complainant could not prove the case against the accused beyond reasonable doubt and accordingly, found that the accused is not guilty of the offence u/s.138 of the NI Act and she is acquitted u/s.255(1) of Cr.P.C. It is the above findings and order of acquittal, sought to be challenge by filing an appeal for which leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri. Surin George, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. The learned counsel for the petitioner vehemently Crl. L.P.NO.917 of 2011 3 submitted that, absolutely no evidence is adduced from the side of the accused to disprove the case of the complainant or to substantiate the defence version. It is pointed out by the learned counsel that, even though the statutory notice was issued, the accused did not response to the same and no reply was issued. It is also pointed out by the counsel that the accused never entered into the box and no evidence is adduced to substantiate the defence. Thus, according to the learned counsel, the observations and findings and the order of acquittal recorded by the trial court and liable to be set aside and the accused is liable to be convicted and punished accordingly. 5. I have carefully considered the argument advanced by the learned counsel for the petitioner. The specific case of the petitioner, who is the complainant is that the accused and her husband, approached him for a loan and obtained Rs.3,00,000/- on 24.12.2004 after executing a joint promissory note. It is the further case of the petitioner that towards the part payment of the above loan amount, the accused repaid a sum of Rs.1,50,000/- on 24.2.2006 including the entire interest on the whole amount up to 24.2.2006 and on 24.2.3006 itself, Ext. P1 cheque issued in favour of the complainant towards the payment Crl. L.P.NO.917 of 2011 4 of the balance amount of Rs.1,50,000/-, out of the principal amount availed by herself. According to the complainant, the said cheque presented on 24.2.2006 for encashment, which dishonoured and thereby committed the offence. The case of the accused is to the effect that she never contacted and obtained money from the complainant as alleged by the complainant in the complaint. On the other hand, according to her, the cheque in question is the one which entrusted with the complainant by the husband of the accused connected with his employment with the complainant. The trial court is not prepared to accept the claim of the complainant because of the infirmities and the unbelievable story put forward by the complainant and thus the learned Magistrate has held that the complainant could not prove the case against the accused beyond reasonable doubt. In the light of the arguments advanced by the counsel for the petitioner and in the light of the materials, evidence and circumstances referred to by the learned Magistrate in the judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to obtain leave of this court u/s.378(4) of Cr.P.C so as to challenge the judgment of the trial court. Crl. L.P.NO.917 of 2011 5 6. On a scanning of the judgment of the trial court which sought to be impugned, it can be seen that the learned Magistrate has assigned several reasons in support of his conclusion that the complainant has failed to prove his case beyond reasonable doubt. From the judgment, it appears that the complainant has not assigned any reason for paying such a huge amount in favour of the accused, who is a lady and obtaining her cheque towards the payment of the balance amount. To prove the transaction, as claimed by the complainant which taken place on 24.12.2004, absolutely, there is no independent evidence, other than the interested version of PW1, the complainant and PW2, who is the son of the complainant. Though both PW1 and PW2 has got a case that a joint promissory note was executed by the accused as well as his husband, no scrap of paper was produced in support of the above claim. It is true, that PW1 has gave an evasive explanation to the effect that when the cheque in question was given, the accused has got back the promissory note. According to the learned Magistrate, it is unbelievable and it is highly improbable that one would have returned the promissory note even without retaining a copy of the same. The above observation and finding of the learned Crl. L.P.NO.917 of 2011 6 Magistrate is reasonable to a prudent mind. When the transaction involved a sum of Rs.3,00,000/-, it is unbelievable that the complainant has returned the promissory note. So, absolutely there is no documentary evidence or any independent evidence to prove the transaction. 7. It is also relevant to note that as rightly found by the learned Magistrate, the claim of the complainant that the accused issued cheque on 24.2.2006 for Rs.1,50,000/- is quite unbelievable. I find no reason to interfere with the above finding and to take a different view. If half of the loan amount and the entire interest for the same is paid on 24.2.2006 in cash, there is no reason for the complainant for not insisting for the payment of the remaining balance amount in cash instead of obtaining a cheque for Rs.1,50,000/-. Even otherwise, a cheque could have been obtained for the entire amount of Rs.3,00,000/- with the interest for the same up to 24.2.2006, if the case of the complainant is a genuine one. It is also relevant to note that according to the complainant, the accused represented to him that the cheque would be honoured, if presented for encashment after two days. If that be so, the transaction that alleged taken place on 24.2.2006 could have been postponed to a date after, Crl. L.P.NO.917 of 2011 7 two days. The subsequent conduct of the complainant is against his own admission and evidence. Though, the accused requested him to present the cheque after two days, he presented the same on 24.2.2006 itself. So, the above facts and circumstances and the evidence render the case of the complainant as unreliable and unacceptable. 8. It is relevant to note that the specific case of the accused as supported by the evidence of DW1 is to the effect that Ext.P1 cheque was given to the complainant, as a security by DW1 as he was working under him. Though PW1 denied the suggestion that the signature and the rest of the writings in Ext. P1 cheque are in different ink, the learned Magistrate after scrutiny of Ext.P1 cheque has specifically found that it is patent from Ext.P1 that the same had been written in different ink from the ink used for putting the signature. The above facts would sufficient to substantiate the defence version that the cheque in question was obtained by the complainant from the husband of the accused as a security while DW1 was working under the complainant. In the light of the above facts and circumstances and the materials, which I referred to above as seen from the judgment in question, according to me, the learned Magistrate is fully justified in his Crl. L.P.NO.917 of 2011 8 finding that the complainant failed to prove the case beyond reasonable doubt. In the light of the decision of the Apex Court in Krishna Janardhana Bhat v. Dattatraya Hedge (2008(1) KLT 425 (SC), the submission of the learned counsel that the accused failed to send reply for the statutory notice and reluctant in adducing evidence as witness are not sustainable and the accused has succeeded in proving that the case of the complainant is unbelievable. Thus, according to me, even if an appeal is entertained, there is no scope for any interference with the above findings of the court below and in the absence of any compelling and substantial reasons the order of acquittal cannot also be interfered with and reversed. Therefore, the petitioner is miserably failed to make out a case so as to grant leave of this Court u/s.378(4) of Cr.P.C. In the result, the above leave petition is devoid of any merit and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/