IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Crl.L.P..No. 367 of 2011() -------------------------- CC.114/2010 of J.M.F.C.,IRINJALAKUDA .................... PETITIONER/COMPLAINANT: ------------------------------------------- SHEEN PAUL.M.C., S/O.CHAKKUNNY, MANJALY HOUSE, PALLIKUNNU, VARANDARAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SMT.P.R.REENA RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. SHAJU.C.K., S/O.KOCHAPPU, CHIRAKKEKARAN HOUSE, PALLIKUNNU, VARANDRAPPILLY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN-680 303. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 011. BY PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.L.P. No. 367 of 2011 ----------------------------------------------- Dated this 26th May, 2011. ORDER This petition is filed for grant of leave to file appeal against an order of acquittal. 2. Petitioner is the complainant. He filed a complaint against first respondent-accused alleging offence under Section 138 of the Negotiable Instruments Act ('the N.I. Act' for short) on the allegation that accused issued a cheque for Rs.95,000/- in favour of the complainant for discharge of the liability towards the complainant. The cheque on presentation was dishonoured due to insufficiency of fund. A lawyer notice was issued but the amount was not repaid. Hence, the complaint. 3. The complainant himself examined as PW1 and marked Exts.P1 to P6 to prove his case. The trial court, on consideration of the evidence adduced, found that the case of the complainant is unbelievable. The complainant did not prove execution of Ext.P1 cheque and hence the accused was acquitted. Learned counsel for petitioner submitted that the [Crl.L.P.367/2011] 2 accused was acquitted only for the reason that the complainant did not remember the date on which the amount was paid. It is also submitted that no reply notice was issued by the accused and he did not prove his case and hence the order of acquittal is not sustainable, it is submitted. 4. On hearing both sides and on going through the impugned order, I do not find any ground to grant leave. Referring to the evidence of PW1, the trial court observed in paragraph 6 of the order as follows: “ When he was cross-examined he deposed that accused borrowed Rs.95000/- from him in the month of May 2009. He does not know the date on which the amount was paid. He has not mentioned in the complaint as well as in the affidavit that how the amount became due from the accused to him. He paid the amount without receiving any document. Accused had agreed to return the same within 10-15 days. When it was demanded back, accused issued a cheque. He does not know the date on which the cheque was issued. He further stated that the brother in law of the accused who accompanied accused wrote in the cheque and he did not enquire name and address of brother-in- law of the accused.” 5. At page 6 of the impugned order, the trial court also made the following observations and findings: “...Though PW1 has adduced evidence to prove the [Crl.L.P.367/2011] 3 execution there are some discrepancies in his version and his version seems to be quite unbelievable. It he had given such a huge amount to accused at lest that fact should have been stated in the complaint. In the complaint, complainant has simply stated that accused issued a cheque in discharge of his liability. No evidence was brought before the Court to show that complainant had much acquaintance with the accused to pay such a huge amount without receiving any document. If the complainant had much acquaintance with the accused definitely his version could have been considered.” 6. On hearing petitioner's counsel and on going through the above findings, I do not think that there is any perversity in the findings entered into by the trial court. The order of acquittal passed on sound and valid reason and hence, I am not inclined to grant leave. Petition is dismissed. SD/- K.HEMA, JUDGE. Krs.