IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 Crl.L.P..No. 840 of 2011() ------------------------------------ CC.96/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM .................... PETITIONER/COMPLAINANT: ------------------------------------------ KOCHUMON, AGED 42, S/O.SHAMSUDEEN, PUTHUVAL VEEDU, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE. BY ADV. SRI.S.MOHANAN RESPONDENTS/STATE AND ACCUSED ---------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. ANEESHKUMAR, AGED 33 YEARS, S/O.DAMODARAN, RATHEESHBHAVANAM, IVARKALA NADUVIL MURI, PUTHANAMBALAM VILLAGE, KOLLAM DISTRICT-691 552. R1 BY PUBLIC PROSECUTOR MR.P.A. SALIM. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 03/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.840 of 2011 -------------------------------------------- Dated this the 3rd 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. According to the complainant, the accused borrowed Rs.70,000/- from the complainant on 8.9.2006 and the accused issued a cheque dated 9.10.2006 for the said amount towards the discharge of the said liability and when the said cheque presented for encashment, it was dishonoured for the reason, “funds insufficient” and the accused has not repaid the cheque amount, inspite of the statutory notice issued by the complainant and therefore, the accused has committed the offence punishable u/s. 138 of the NI Act. With the said allegation, the complainant approached the court of Judicial First Class Magistrate, Kayamkulam by filing a complaint for the offence u/s.138 of the NI Act, based upon which cognizance was taken and instituted CC No.96/2007. During the trial, the Crl. L.P.NO.840 of 2011 2 complainant himself was examined as PW1 and produced Ext.P1 to P6. From the side of the defence, though no witness was examined, Exts.D1 to D5 were produced and marked. The trial court after considering the entire evidence and materials on record, found that the complainant had failed to prove his case regarding the execution of Ext.P1 cheque by the accused, beyond reasonable doubt and therefore, no presumption can be drawn in favour of the complainant u/s.139 of the NI Act. It was also found that even other wise the accused has having a plausible case to defend the prosecution case and consequently, found that, the accused cannot be said to have executed and issued Ext.P1 cheque. Thus, the accused found not guilty and accordingly, he is acquitted u/s.255(1) of Cr.P.C. It is the above finding and order of acquittal, sought to be challenged before this court by filing an appeal for which leave of this court sought u/s.378(4) of Cr.P.C. 3. I have heard Sri.S.Mohanan, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 4. Counsel for the petitioner submitted that the evidence and materials available on record would show that the accused Crl. L.P.NO.840 of 2011 3 had executed and issued the cheque, which was dishonoured for the reason insufficient funds and therefore, the offence u/s.138 is attracted against the accused, hence, the finding of the court below is not correct. 5. The case of the accused is that, the complainant is engaged in vehicle finance under the name and style J.K. Investment/JK Finance and according to the accused, he issued 4 signed blank cheques and signed stamp papers worth of Rs.50/- to the complainant on behalf of one of his friend by name Biju, who availed a vehicle finance to the tune of Rs.80,000/- from the complainant. It is the further case of the accused that around Rs.30,000/- was already repaid in the same transaction and there are receipt issued in the name of the accused when he made the repayment towards the vehicle loan. It is the further case of the accused that Ext.P1 cheque, is the cheque in question is the one which issued to the complainant connected with the actual transaction between the complainant and the friend of the accused. As I indicated earlier, the learned Magistrate of the trial court was specifically found that the complainant has failed to prove the fact that Ext.P1 cheque was executed and issued by the accused beyond reasonable doubt. In the light of the Crl. L.P.NO.840 of 2011 4 argument advanced by the counsel for the petitioner and in view of the finding of the learned Magistrate, on the basis of the materials referred to in the judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave u/s.378(4) of Cr.P.C to file an appeal against the judgment in question. 6. The specific case put forwarded by the accused is to the effect that the accused has no direct transaction with the complainant and he had denied the transaction which alleged in the complaint. According to the accused, one of his friend namely Biju availed a vehicle loan from a finance, namely, JK Investment/JK Finance and connected with the said loan transaction, the complainant obtained 4 signed blank cheques and stamp papers from the accused and one of such cheque leaves mis-used for the purpose of filing the present complaint. It is true, during cross examination of PW1, he had denied the suggestion of the accused and also maintained a stand to the effect as he has no relation ship with the institution by name JK Investment/JK Finance. The complainant has also denied the suggestion that PW1 is one of the partners of JK Investment and then both Puthuval Associates and JK Investment are run by the Crl. L.P.NO.840 of 2011 5 same person. It is also true, that PW1 had deposed that he had no knowledge about Ext.D2 and D3 receipt. But the defence had succeeded getting an admission from the complainant, PW1 that he was an accused in CC No.516/06 on the file of the same court and the accused produced certified copy of the deed of partnership with respect to the JK Investment which was produced in CC No.516/06, i.e., Ext.D1. The accused has also produced Ext.D4, which is the copy of CMP.No.4079/2006 in CC No.517/06, an application filed for interim custody of lorry involved in the above referred case, and the said document contained the deposition of PW1, who was examined in that case as DW4. In that deposition, according to the learned Magistrate, it appears that the complainant herein is one of the partners of JK Finance as well as the JK Traders. So on the basis of the above materials, the trial court has found that the complainant herein is one of the partners of JK Finance and JK Traders and the above fact suppressed by the complainant in his complaint and during his deposition. The trial court has also found that except the mere claim of the complaint and his deposition as PW1, no independent evidence was adduced to substantiate his claim that the accused borrowed such amount and issued Ext.P1 Crl. L.P.NO.840 of 2011 6 cheque. It is also found by the learned Magistrate, that even according to PW1, the entries in Ext.P1 cheque was made by the person, who accompanied the accused. Though, the complainant had admitted that some of his friends were present in his house at the time of the transaction with the accused no attempt was made by the complainant to examine them to prove the transaction. On the basis of the above materials and after the proper appreciation of the same and on comparison of the case of the complainant as well as the accused, the learned Magistrate has found and concluded that the complainant has miserably failed to prove beyond reasonable doubt that Ext.P1 cheque was the one which executed and issued by the accused. According to me, the above finding is fully justified in the light of the materials and evidence referred to above. More over, as rightly held by the learned Magistrate, the accused had succeeded in making out a probable case even if it is held that the complainant is entitled to get the presumption u/s. 139 of the NI Act. Therefore, according to me, even if an appeal is entertained, there is no scope for interfering with the above finding of the learned Magistrate, because those findings are fully supported by the materials and evidence and such findings Crl. L.P.NO.840 of 2011 7 are legally correct and proper. In the absence of any compelling and substantial reason, the order of acquittal recorded in favour of the accused cannot be interfered with and reversed. Thus, according to me, the petitioner is miserably failed to make out a case so as to grant leave as sought for in this petition. In the result, there is no merit in the petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/