IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 Crl.L.P..No. 881 of 2011() -------------------------- CC.311/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYOLI .................... PETITIONER/COMPLAINANT: ----------------------------------------------- K.MOHANDAS, S/O.KORUMBAN, KADAVATH HOUSE, KOTTAKKAL.P.O., IRINGAL, PAYYOLI. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT(S): ACCUSED & STATE; ----------------------------------------------------------- 1. O.V.VINODAN, S/O.DHAMODHARAN, THEKKEKOPPARANTAVIDA HOUSE, ICE ROAD, VATAKARA BEACH.P.O., VATAKARA, PIN - 673 101. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2 BY PUBLIC PROSECUTOR SMT. LALIZA THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.L.P.No.881 of 2011 ------------------------------- Dated this the 22nd day of November, 2011. O R D E R The complainant in a prosecution for an offence punishable under Section 138 of the Negotiable Instruments Act is the petitioner, as he is aggrieved by the judgment dated 13.6.2011 in C.C.No.311 of 2009 in the court of Judicial First Class Magistrate-Payyoli, by which the learned Magistrate acquitted the accused, in his complaint, under Section 255(1) of Cr.P.C. and hence the petitioner proposed to file an appeal against the above judgment for which he seeks leave of this Court under Section 378(4) of Cr.P.C. 2. The case of the complainant is that, the accused borrowed an amount of Rs.4 lakhs from the complainant and when it was demanded back, the accused issued a cheque in discharge of that liability. Ext.P1 is the said cheque, which when presented for encashment 2 Crl.L.P.No.881 of 2011 dishonoured as there was no sufficient fund in the account of the accused. Consequently, the complainant caused to issue a demand notice for the repayment of the dishonoured cheque amount but the accused has not paid the amount. Thus according to the complainant the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. With the above allegation, by filing a complaint, the complainant approached the court of Judicial First Class Magistrate-Payyoli, wherein cognizance was taken for the said offence and instituted C.C.No.311 of 2009. During the trial of the case, two witnesses each were examined from the side of the complainant as well as from the defence side. Exts.P1 to P9 were produced from the side of the prosecution and from the side of the defence Exts.D1 and D2 were marked. The trial court after considering the entire evidence and materials on record found that, complainant has not proved the execution of Ext.P1, especially when his version in the box as well as in the complaint are unbelievable and it is further found that as the 3 Crl.L.P.No.881 of 2011 complainant has not proved the execution of Ext.P1, presumption under Section 139 of Negotiable Instruments Act cannot be drawn in favour of the complainant. Resultantly, the trial court held that the accused had not issued Ext.P1 cheque in discharge of his liability towards the complainant and consequently, the accused was acquitted. It is the above findings and order of acquittal sought to be challenged, for which leave of this Court is sought for. 3. I have heard Adv.Sri.Zubair Pulikool learned counsel for the petitioner and I have perused judgment of the trial court carefully. 4. The learned counsel for the petitioner vehemently submitted that, the execution of Ext.P1 cheque is proved properly. But the trial court found against the petitioner and according to the learned counsel, the reasons assigned by the learned Magistrate to disbelieve the case of the complainant are unsustainable. It is pointed out that the complainant and accused are relatives and therefore there is nothing peculiar in giving the cheque amounts to the 4 Crl.L.P.No.881 of 2011 accused without any security or document. It is also the submission of the learned counsel that though the defence has taken a contention to the effect that several cheques and documents were entrusted with one Abu and the cheque in question is one among such documents, the defence has not adduced any evidence to substantiate such contention and therefore according to the learned counsel, the trial court is not proper and correct in not extending the benefit under Section 139 of the Negotiable Instruments Act in favour of the petitioner. Thus according to the learned counsel, the petitioner is entitled to get leave as sought for and there is every chance to interfere with the findings and order of acquittal recorded by the learned Magistrate. 5. From the impugned judgment it can be seen that, one of the main reasons given by the learned Magistrate to disbelieve the case of the complainant is that the complainant has miserably failed to prove the execution and issuance of Ext.P1 cheque especially when there is no averments or allegation either in the complaint or in the 5 Crl.L.P.No.881 of 2011 proof affidavit regarding the mode of execution of the cheque. The learned Magistrate has found that though the complainant has deposed before the court that the accused had executed the cheque by making endorsement in Ext.P1 cheque in his presence, the physical evidence on record shows that the entries are made in Ext.P1 cheque through type written words and it is not a hand written one. Though the learned Magistrate assigned several other reasons for the purpose of disposal of this petition, according to me those reasons need not be considered, since the outcome of this petition depends upon the correctness of the findings regarding the execution of the cheque. Therefore, the question to be considered is, especially in the light of the arguments advanced by the counsel for the petitioner and the findings of the court below on the basis of the materials referred to therein, whether the petitioner has succeeded in making out the case so as to grant leave as sought for in this petition. 6. The specific case of the complainant is that, the 6 Crl.L.P.No.881 of 2011 accused borrowed an amount of Rs.4 lakhs and towards the discharge of the said liability issued Ext.P1 cheque after its due execution in his presence. Whereas the case of the defence is that, he had no such transaction with the complainant as claimed by the complainant. According to the defence, he had entrusted four blank cheques with the complainant for giving it to one Abu, who is the joint account holder of the cheques. According to the defence, one among such cheques was misused by the complainant, for filing the present case. The trial court after considering the evidence and materials on record found that, such a huge amount of Rs.4 lakhs claimed to have given to the accused was without any proper security. It is also found that when the complainant was examined as PW1, his evidence is to the effect that Ext.P1 cheque was issued by the accused after making entries in the cheque in front of the complainant. The above findings of the complainant proved as false and incorrect in the light of the findings of the court below that Ext.P1 is a type written cheque. The learned counsel for the 7 Crl.L.P.No.881 of 2011 petitioner has no case that Ext.P1 is not a type written cheque. If that be so, the case of the complainant that the accused executed the cheque by making entries in the cheque in front of the complainant is unbelievable and liable to be discarded. The learned Magistrate has also found that particularly in para 9 of his judgment that if the accused has issued type written cheque to the complainant to discharge his liability, definitely the complainant should have mentioned that fact in the complaint as well as in the proof affidavit. It is further found that, the version of PW1 in the proof affidavit is that the entires in the cheque were made by the accused and Ext.P1 cheque was handed over to him after putting his signature. By assigning several other reasons, the learned Magistrate has also refused to believe the version of the complainant and finally found that the issuance of type written cheque, put some suspicion on the execution of Ext.P1 cheque. According to me, the above findings and observation of the learned Magistrate is perfectly correct and valid as the same are based upon the 8 Crl.L.P.No.881 of 2011 available evidence and materials and according to me those facts and findings are in consistent with the case of the accused that he had not executed and issued the cheque in favour of the complainant in connection with the transaction claimed by the complainant. If that be so, according to me, even if an appeal is entertained there is no scope to interfere with the said findings and the order of acquittal. There is no compelling circumstances or reason to interfere with the order of acquittal and to reverse the same. Therefore, according to me this petition is devoid of any merit and the relief sought for in this petition is to be rejected. In the result this petition is dismissed as the same is devoid of any merit. V.K.MOHANAN, Judge ami/