IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.L.P..No. 308 of 2011() -------------------------- CC.9/2005 of J.M.F.C. - II, ETTUMANUR .................... PETITIONER (S): COMPLAINANT ------------------------------------------ HARIKUMAR K.N., KURUPPANKUNNEL HOUSE, ETTUMANOOR, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.ABRAHAM P.GEORGE SMT.K.V.LEKSHMY RESPONDENT(S): ACCUSED -------------------------------------- 1. MATHEW KORA, BRANCH MANAGER, KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD., NJEEZHOOR BRANCH, NJEEZHOOR P.O. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.MATHEW JOHN (K) FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/05/2011, ALONG WITH CRL.L.P.309/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- CRLP.No. 308 OF 2011 & CRLP.No. 309 OF 2011 ----------------------------------- Dated 25th May, 2011 COMMON ORDER These petitions are filed to grant leave for filing appeal. 2. Petitioner filed two complaints against respondent/accused alleging offence under Section 138 of Negotiable Instruments Act. Both were jointly tried and disposed of by a common judgment. These petitions are filed for granting of leave to file appeal against order of acquittal and both of them are disposed of by this common order. 3. As per the allegations in the complaint accused, for the discharge of a debt towards complainant issued two cheques for Rs.4,90,000/- and 9,10,000/- respectively and on presentation of the cheques, those were dishonoured for insufficiency of funds. A lawyer notice was issued demanding payment of money but no payment was made, hence the complaint. 4. Heard petitioner's counsel. It is submitted by learned counsel for petitioner that accused has not disputed the financial capacity of the petitioner. But trial court held that there is no evidence to show that petitioner has source of income. On going Crl.L.P. No.308/11& 309/11 2 through the impugned order, I find that court considered probability of complainant for advancing huge mount of Rs.14,00,000/- to the accused. Various aspects were considered by trial court and it was found that such a huge amount would not be advanced to a person without even obtaining any document. No witness was examined by complainant to show that Ext.P1 and Ext.P2 cheques were drawn by accused in favour of him. Trial court also came to a conclusion that complainant failed to prove the source to advance 14,00,000/- as alleged by accused. 5. On going through the impugned oder I do not find any reason to interfere with the findings. The findings entered are supported by sound and valid reasons. Trial court observed at page 9 of the impugned order as follows: “The complainant who claimed to have conducted Abkari business failed to produce any document to prove the same. There is no explanation from the complainant as to why he advanced such a huge amount of Rs.14,00,000/- to the accused without obtaining any document evidencing payment of amount. Admittedly Ext.P1 and P2 are cash cheques and the case of the accused is that Gopalakrishnan entrusted the blank cheque leaves given by he accused to the complainant and they filed the complaints by filling the cheque. As the name of the payee is not written in Ext.P1 and P2 cheques, the burden is on he complainant to prove that Crl.L.P. No.308/11& 309/11 3 Ext.P1 and P2 cash cheques were in fact drawn by he accused in favour of the complainant in discharge of an enforceable debt as alleged. It cannot be believed that such a huge amount of Rs.14 lakhs will be advanced to a person without obtaining any documents. Thus it is found that if the complainant had in fact given 14 lakhs to the accused as alleged, he would have at least obtained the cheques containing the name of the payee in the cheques. No witness was examined by the complainant to show that Ext.P1 and Ext.P2 cheques were drawn by the accused in favour of the complainant.” The above findings are supported by evidence and it cannot be said those are perverse or infirm due to any reason. There is no ground to grant leave. These petitions are dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy //