IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.L.P..No. 878 of 2010() -------------------------- CRA.37/2008 of ADDL.SESSIONS COURT,KOTTAYAM CC.694/2003 of J.M.F.C.,PALA .................... (S): PETITIONER/RESPONDENT/COMPLAINANT ----------------------------------------------------- T.P.VINOD, S/O.PARAMESWARAN PILLAI, VELLAPPADU, PALA, LALAM, KOTTAYAM. BY ADV. SRI.MANUEL KACHIRAMATTAM SMT.MERRY GEORGE RESPONDENT(S): APPELLANT/ACCUSED -------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. 2. SANKAR, S/O RAMAN PILLAI, LAKSHMI BHAVAN, PULIYANOOR, MEENACHIL, NOW RESIDING AT KARATHIKA BHAVAN, PAKALOMATTAM, KURAVILANGADU KARA, KOTTAYAM. ADV. SRI.M.V.THAMBAN FOR R2 SRI.R.REJI FOR R2 SRI.B.BIPIN FOR R2 PUBLIC PROSECUTOR SMT.CHARISMA C.M. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.L.P. No.878 of 2010 ---------------------------------------------- Dated 2nd September, 2010. O R D E R Petition for leave. 2. Petitioner was tried for offence under Section 138 of the Negotiable Instruments Act, by the Judicial Magistrate of First Class, Pala. He was convicted for the said offence. In appeal, learned Sessions Judge acquitted the accused. 3. Learned Sessions Judge found that from the evidence of PW1, the complainant, it is clear that Ext.P1 cheque was not executed by the accused and hence, no complaint under Section 138 would lie against accused, on the allegations made in the complaint. It was also held that the accused had denied the transaction and took up a plea that the complainant has no financial capacity to pay an amount of Rs.60,000/-, as alleged by him. PW1 was cross-examined also, on this aspect and the appellate court found that there is no satisfactory evidence regarding the transaction between the complainant and the accused. The complainant is only an employee in an STD booth and his source of income for raising Rs.60,000/- was doubtful, it Crl.L.P. NO.878/10 2 was held. 4. Learned Sessions Judge held that there is contradictory evidence from the side of PW1 regarding the execution of Ext.P1. According to the accused, Ext.P1 was a lost cheque. Since execution of the cheque is not established and the source of income of complainant to raise Rs.60,000/- to be handed over to the accused is also not established, the order of acquittal cannot be said to be unsustainable. There is no reason why this Court should interfere with the order of acquittal. Learned counsel for petitioner was not able to substantiate why the findings entered into by the appellate court regarding execution of cheque and financial capacity are unsustainable. In the above circumstances, I do not find any reason to allow this petition. Petition is dismissed. K.HEMA, JUDGE. tgs