IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.L.P..No. 346 of 2011() -------------------------- ST.100/2007 of J.M.F.C. - III, KOLLAM .................... PETITIONER/COMPLAINANT: -------------------- M.RAJAMANI, SAMTHRIPTHI, BHARATH NAGAR, VADAKKEVILA P.O., KOLLAM. BY ADV. SRI.SYAM J SAM RESPONDENT(S): --------------- 1. P.SULEKHA, W/O.ANILKUMAR, VADAKKTHILVEEDU, POLACHIRA, ASRAMAM SOUTH, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No. 346 of 2011 ----------------------------------------------- Dated this 24th day of May, 2011 . ORDER This petition is filed for grant of leave to file appeal against an order of acquittal passed by the Magistrate Court. 2. Petitioner is the complainant. He filed a complainant alleging that Ext.P1 cheque was issued by the accused to the complainant towards repayment of a loan of Rs. 4.5 lakhs. But the cheque, on presentation, was dishonoured due to insufficiency of fund. Though notice was issued demanding payment, no payment was effected. Hence, the complaint. 3. PW1 was examined and Exts.P1 to P6 were marked on the side of the complainant. The accused did not adduce any evidence. On an analysis of the evidence in detail, the trial court found that there is some discrepancy in the cheque. It was torn and cello tape was affixed on it. The following observation and findings are entered in paragraph 8 of the impugned order: “On going through Ext.P1 cheque what is revealed that originally the date had been written as 8-3. [Crl.L.P.346/11] 2 The numeral 3 has been scored off and over the same the signature of accused appears. The cheque has been torn across the year portion and substantial area is torn off show that the beginning of numeral of the year cannot be understood. It is true that the Service Co-operative Bank has caused to dishonour the same for insufficiency of funds. But from an appearance of Ext.P1 cheque mutilation is obvious and there is no specific authentication for the mutilation to rearing off. Result the execution of Ext.P1 is not proved and hence there is no presumption as to existence of a civil liability There is no separate independent evidence either to prove the execution of the order to prove the passing of consideration.” 4. On hearing petitioner's counsel and on going through the impugned order, I do not find that the findings entered by the trial court are perverse or unreasonable. It is clear that it is not for the mere reason that cheque was torn that the case of the complainant was not accepted. The trial court also found that complainant did not adduce any evidence regarding source of income. The findings and observations in paragraphs 6 and 7 are as follows: “6. The case of the complainant is that the complainant had advanced Rs.4,50,000/- to the accused on 8.9.2004 and on the same day the accused issued Ext.P1 cheque for Rs.4,50,000/- dated 8.9.2004 drawn on the Uliyakovil Service Co- operative Bank. [Crl.L.P.346/11] 3 7. He had been cross-examined at length. His case is that the amount had been asked from him for one week back and he had two lakhs rupees with him. 2.5 lakhs had got from his brother-in- law and advanced to the accused. He is a businessman by profession and he paid income tax. According to him his every financial transactions do appear in his income tax return, but no such document is produced.” I do not think that the impugned order calls for any interference. Petitioner's counsel was not able to substantiate that the crucial findings of the trial court is perverse or unreasonable. Hence, I am not inclined to grant leave. Petition is dismissed. K.HEMA, JUDGE. Krs.