IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 CRL.A.No. 1331 of 2010() ------------------------ CC.456/2007 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... APPELLANT(S): (COMPLAINANT) --------------------------- SREE GOKULAM CHIT AND FINANCE COMPANY PRIVATE LIMITED, CHENNAI, BY POWER OF ATTORNEY, PADINJARATH CHANDRASEKHARAN, S/O. KUNJUNNIKURUP, AGED 59, MEMUNDA AMSOM, KEEZHAL DESOM. BY ADV. SRI.RAJMOHAN R.PILLAI RESPONDENT(S): (ACCUSED & STATE) -------------------------------- 1. P.M.SAJEEVAN, S/O. POKKEN, AGED 35, PADINJARENALUKANDIYIL(H), KUNNUMMAL AMSOM, KAKKATTU P.O., PIN – 670005. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL FOR R2 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.A.No.1331 of 2010 ~~~~~~~~~~~~~~~~ Dated this the 16th day of July 2010 J U D G M E N T This is an appeal preferred challenging the order of acquittal recorded by the Judicial First Class Magistrate, Nadapuram in C.C.No.456/2007 by which the learned Magistrate acquitted the accused for the offence punishable under Secs.420 & 468 of IPC and Sec.138 of the N.I.Act. 2. The appellant is the complainant. The allegation is that the complainant/company, conducting chitty business and the accused was a subscriber in chitty No.J3 D 216/5 and the value of the said chitty is Rs.50,000/- and towards the said transaction an amount of Rs.33,113/- was due to the company from the accused. According to the complainant due to persistent demand for the payment of the said amount, the accused issued a cheque for the said Crl.A.No.1331 of 2010 -: 2 :- amount which when presented for encashment, was dishonoured. Thereafter, the complainant issued a statutory notice demanding the accused to repay the amount covered by the cheque in question and it is also alleged in the notice that the accused had dishonest intention to cheat the complainant and the cheque was issued by incomplete signature and he had promised the complainant that there would be sufficient amount in his account to honour the cheque. 3. The complaint was moved through the Power of Attorney holder of the complainant and cognizance was taken recording the sworn statement of the Power of Attorney holder of the complainant, for the offence punishable under Secs.468 and 420 of I.P.C. On appearance of the accused, the copies of the relevant records were furnished to him and the Power of Attorney holder of the complainant was examined in chief as PW1 and marked Exts.P1 to P8 . Thereafter a formal charge was Crl.A.No.1331 of 2010 -: 3 :- framed under Sec.420 of I.P.C. which was denied by the accused when the same was read over and explained to him. The accused was questioned under Sec.313 of Cr.P.C. he denied the incriminating circumstances that brought on record during the prosecution evidence and it is the further case of the accused that he had already cleared the entire liability and only an amount of Rs.1,500/- was due as interest. It is also relevant to note that the accused emphatically denied the entrustment and the signature contained in the cheque in question and the handwriting. Thus it can be seen that the specific case taken by the accused is that no liability is due to the complainant which can be legally enforcible against the accused and he had also denied the execution and issuance of the cheque. 4. The trial court after considering the evidence and materials on record found that except the evidence of PW3, there is no evidence regarding the execution. It is also the finding of the trial court that though the execution is Crl.A.No.1331 of 2010 -: 4 :- specifically challenged, no steps taken to prove the handwriting and signature in the cheque or atleast in proving that the cheque was drawn from the account of the accused. The trial court has specifically found that PW3 has admitted that the accused has remitted a total amount of Rs.23,925/- and even remitted an amount of Rs.2,000/- after auctioning the chitty. Therefore, thus the trial court concluded that even if the case set up by the complainant is admitted, it is only breach of contract against which the remedy is civil petition and not for a criminal prosecution. 5. The above reasoning of the trial court based upon the materials and evidence on record appears to be correct, proper and legal and therefore no interference is called for. 6. Even if this Court is in a position to take a different view, the same is not a ground to interfere with an order of acquittal recorded by the trial court. The Apex Court in the decision in Ghurey Lal v. State of U.P. [2008 (4) KLT SN 17 (C.No.17)], has indicated the circumstances Crl.A.No.1331 of 2010 -: 5 :- under which the appellate court can interfere with the order of acquittal. It was also held that presumption of innocence of accused is reinforced by order of acquittal and therefore, unless there are substantial and compelling reasons, the appellate court, while exercising the appellate jurisdiction, shall not interfere with the order of acquittal. In the light of the above legal position and the facts and circumstances involved in the case, I find this appeal is devoid of any merit and accordingly the same is dismissed. V.K.MOHANAN, JUDGE. Jvt