IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Crl.L.P..No. 954 of 2011() -------------------------- ST.523/2010 of C.J.M.,KOLLAM .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ MURUKAN.A,AGED 45 YEARS, S/O.AYYAPPAN ACHARI,SRILEKSHMI AKKARAVILA NAGAR-21 VADAKKEVILA VILLAGE,KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): --------------- 1. K.R.PRAMOD KUMAR,KOLOTHU HOUSE, KOORKKANCHERY PO,THRISSUR ,PIN 680 001. 2. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.LOWSY THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.954 of 2011 -------------------------------------------- Dated this the 21st 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. The case of the complainant is that the accused borrowed an amount of Rs.5 lakhs on 16.3.2007 and towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured, on the ground of funds insufficient in the account of the accused and accused has not repaid the amount covered by the dishonour of cheque, in spite of a statutory notice. Thus, according to the complainant, the accused has committed the offence punishable u/s.138 of the NI Act. On the basis of the complaint preferred and on taking cognizance, ST No.523/2010 was instituted in the court of Chief Judicial Magistrate, Kollam and during the trial of the case, the complainant himself was examined as PW1 and marked Exts.P1 to P7. Though, no witness examined from the Crl. L.P.NO.954 of 2011 2 side of the defence, Exts.X1 and X2 were marked as defence exhibits. The trial court after considering the entire evidence and materials found that the evidence is not sufficient to prove that there exist the legally enforceable debt of Rs.5.lakhs and for the purpose of discharging that liability, the accused issued Ext.P1 cheque and it is further found that the defence story is more probable and possible. Consequently, the court below has found that the complainant has failed to establish the case beyond all reasonable doubt and accordingly, acquitted the accused u/s. 255(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged by filing an appeal and therefore, the petitioner seeks leave of this court u/s.378(4) of Cr.P.C. 3. I have heard Sri. Thaiparambil Thomas, learned counsel appearing for the petitioner and I have perused the judgment of the trial court, which is sought to be challenged. 4. As I indicated earlier, the specific case of the complainant is that the accused borrowed an amount of Rs.5.lakhs and towards the discharge of the said liability, Ext.P1 cheque was issued, but the same was dishonoured for want of sufficient fund. The case of the accused is that he does not Crl. L.P.NO.954 of 2011 3 know, PW1, the complainant and he never borrowed that much amount from him. He had also denied the execution and issuance of Ext.P1 cheque in favour of the complainant. According to the accused he was in Gulf and during that time, he had borrowed an amount of Rs.1,00,000/- from one Nagarajan and was paying an amount of Rs.5,000/- per month with interest and subsequently, the entire amount repaid, but the cheque was not given back. It is also his case that subsequently, his brother, one Mr.Previn obtained some amount as hand loan from the said Nagarajan, and the said Previn failed to repay the amount and by using cheques, which was given as security by the accused connected with his transaction with the complainant, the present complaint is filed by Mr.Nagarajan through PW1. Learned counsel for the petitioner, vehemently submitted that, there is no explanation for the accused as to why Ext.P1 cheque was obtained back from the said Nagarajan if his claim is true. Regarding the discharge of the liability of Rs.1,00,000/- to the said Nagarajan, according to the learned counsel, the learned Magistrate of the trial court failed to consider the improper and unbelievable case of the accused, that he had given an unsigned cheque as security for the Crl. L.P.NO.954 of 2011 4 transaction which he claimed. Thus, according to the learned counsel, the findings and the observations made by the learned Magistrate are factually incorrect and against the evidence and materials on record. According to the learned counsel, the specific and consistent case of the complainant is to the effect that the complainant has obtained Rs.5 lakhs from his brother in-law on 16.2.2006 connected with the disposal of the property of the brother in-law and the amount was given to the accused on 16.3.2007 and Ext.P1 was obtained from the accused towards the discharge of the said liability. According to the learned counsel without assigning any proper and valid reason, the learned Magistrate opted to accept the case of the accused and disbelieved the case of the complainant. 5. I have carefully considered the argument advanced by the learned counsel for the petitioner and I have also perused the judgment of the trial court and on the basis of the above contention of the learned counsel and the findings of the court below on the basis of the materials referred to therein, 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. Crl. L.P.NO.954 of 2011 5 6. In paragraph 9 of the judgment of the trial court, the learned Chief Judicial Magistrate has considered the entire facts and circumstances that involved in the case and containing the appreciation of the evidence on record. The above findings and observations has to be examined in the back drop of the defence set up by the accused. The learned Magistrate has observed that PW1, the complainant has admitted that the house of the accused situates nearly 180 Kms away from his house and complainant has further admitted that 2 cheque leaves of his brother is still with him. He had also admitted that the amount was given to the accused after obtaining cheque leaves as security. According to the learned Magistrate, the above submission of the complainant itself is sufficient to hold that the same, probablise the case of the accused. Even on the basis of evidence of PW1, the trial court has observed that it is difficult to believe that, PW1 after obtaining money from his brother in-law kept huge amount for a long period of one year. PW1 has also admitted that after paying 10 lakhs to the brother of the accused he had obtained 2 cheque leaves from him. He is also admitted that when he paid amount to the accused, the brother of the accused has no Crl. L.P.NO.954 of 2011 6 liability with him. But according to the learned Magistrate, the above admission is falsified as per Ext.D1 and D2. D1 is the copy of the complaint for the offence punishable u/s.138 of the NI Act filed by PW1 against the brother of the accused and Ext.D2 is the order on that complaint. After considering Ext.D1 and D2, the learned Magistrate has concluded that the alleged transaction with the brother of the accused can be gathered from Ext.D1 and D2 and issuance of the cheque leaves by the brother was on 1/2006 and 4/2006. Because of the falsehood of the evidence of PW1, the learned Magistrate has held that the complainant approached the court without on free hand and with malafide intention. The learned Magistrate has also held that the evidence of PW1 would support the contention taken by the accused in Ext.P7 reply notice. On the basis of the above materials and evidence, the trial court has positively found the defence story was more probable and PW1 has miserably failed to prove the case beyond reasonable doubt. That being the position, according to me, it is not a fit case to grant leave u/s.378(4) of CrP.C to challenge the judgment of the trial court by filing an appeal. According to me, even if an appeal is entertained, there is no scope for any finding with the above Crl. L.P.NO.954 of 2011 7 observations and findings of the court below, since those findings are well founded and supported by the materials and evidence on record. The findings and the observations of the learned Magistrate cannot be treated as perverse so as to interfere with the order of acquittal. In the result, there is no merit in this leave petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE. pm/