IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 Crl.L.P..No. 708 of 2011() -------------------------- CC.435/2008 of C.J.M.,KASARAGOD .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ M.A.ABDUL RAHMAN, AGED 49 YEARS, S/O. ANTONY, NABEZA QUARTERS, MUTTATHODY VILLAGE AND POST, VIDYANAGAR, KASARAGOD TALUK, KASRAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.YASODHA, AGED 44 YEARS, BINDU NILAYAM, NEAR DHARMADAIVAM THARAVADU, BEACH ROAD, KASARAGOD POST, KASARAGOD TALUK, KASARAGOD DISTRICT. PUBLIC PROSECUTOR SRI.P.A.SALIM SRI.GEORGE MATHEWS FOR R2 SMT.CELINE JOSEPH FOR R2 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.708 of 2011 -------------------------------------------- Dated this the 16th day of August, 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, who is a lady fish vendor, borrowed an amount of Rs.1,50,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 28.2.2007 and when the above cheque presented for encashment, the same was dishonoured as there was no sufficient fund in the account maintained by the accused and the further case of the complainant is that though statutory notice served on the accused, she had not repaid the amount and therefore, she has committed the offence punishable u/s.138 of the NI Act. With the above allegation, by filing a complaint, the complainant approached the Chief Judicial Magistrate Court, Kasargod wherein cognizance was taken for the said offence and Crl. L.P.NO.708 of 2011 2 instituted CC No.400/2007. Though, the accused has not appeared initially, subsequently, she appeared in the court below and the case was re-numbered as CC No.435/2008 and she contested the matter. During the trial, the complainant has examined himself as PW1 and produced Exts.P1 to P5 documents. From the side of the defence the accused herself was mount to the box and gave evidence to DW1. Beside, the accused, two more witnesses were examined as Dws.2 and 3, who are also the fish vendors. Beside the above oral evidence, the accused has also produced Exts.D1 to D4 documents as defence exhibits. Trial court, who got the opportunity to assess the demeanor of the witnesses and the parties came into the conclusion that there is absolutely no supportive evidence from the part of the complainant to believe that the accused is a person capable of Rs.1,50,000/- and there was no evidence to show that the accused has in need of such huge amount. The trial court has further held that the version of the accused, regarding the issuance of Ext.P1 cheque, has been supported by the evidence of similar fish vendors who availed loan from the complainant. Thus, the trial court concluded that the presumption u/s.118 and 139 of NI Act are not available in favour of the complainant and further held that the chances of Crl. L.P.NO.708 of 2011 3 complainant writing Rs.1,50,000/- in the blank cheque issued by the accused at the time of borrowing Rs.10,000/- as hand loan cannot be ruled out. It is on the basis of the above observations and findings, the trial court has came into the definite finding that the complainant has failed to prove the offence u/s.138 of the NI Act, against the accused beyond reasonable doubt. Accordingly, the accused is acquitted. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri.T.Madhu, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 4. The trial court as evident from paragraph 11,12,13,14 and 15 has elaborately considered the evidence and materials on record. The specific case of the complainant is that, the accused borrowed a sum of Rs.1,50,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque. The specific case of the defence as evident from the 313 statement is to the effect that she had obtained a loan of Rs.10,000/- from the complainant with a stipulation to pay Rs.200/- each for 60 days. When the loan amount has been cleared, the complainant advanced Rs.10,000/- each to six persons who are fish Crl. L.P.NO.708 of 2011 4 vendors at Naimarmoola. According to the accused, at the time of giving loan to six persons, the complainant had obtained two cheques of the accused as security. Thus, the cheque leaves were given in the presence of other ladies who obtained loan from the complainant but the same did not return. It is the further case of the accused that when the complainant started private chitty in which the accused was a subscriber, when she received the chitty against the complainant again obtained two cheque leaves as security. Thus, according to the accused it is one of such cheque leaves, given as security, misused by the complainant to file the present case. After analysis of the evidence and materials on record and appreciating the version of PW1, the case of the complainant as well as the defence, the trial court has opted to accept the version of defence supported by the evidence and disbelieve the case of the complainant. 5. Sri.T.Madhu, learned counsel appearing for the petitioner vehemently submitted that the accused has no dispute regarding the signature contained in the cheque in question and she had also admitted the transaction with the complainant. It is also the submission of the learned counsel that the interested version and evidence of the accused and her witnesses are not corroborated or Crl. L.P.NO.708 of 2011 5 supported by any independent evidence. Therefore, according to the learned counsel, the approach of the learned Magistrate in disbelieving the case of the complainant and accepting the case of the defence is highly erroneous and illegal. According to the learned counsel as long as there is no dispute with respect to the signature in Ext.P1 cheque, the complainant is entitled to get the presumption, but the learned Magistrate has failed to extent the benefit u/s.139 of NI Act in favour of the complainant. Thus, according to the learned counsel, the findings and the order of acquittal recorded by the learned Magistrate are liable to be set aside. 6. In the light of the above contention of the learned counsel and in view of the findings of the learned Magistrate, the question to be considered is whether the petitioner has succeeded in making out of a case so as to grant special leave of this court u/s.378(4) of Cr.P.C. As I indicated earlier, the only evidence that available in favour of the complainant is that of his own deposition and there is no other independent evidence or documentary evidence. The documents produced by the complainant is mainly the cheque in question and the other documents are connected with the dishonour of the cheque and statutory demand. The trial Crl. L.P.NO.708 of 2011 6 court while considering the evidence of PW1 has categorically found that, according to PW1, the money was parted 10 years prior to the issuance of the cheque. According to the learned Magistrate, this statement of PW1 is contrary to the facts mentioned in the affidavit filed in lieu of chief examination. The trial court has further found that though, the issuance of cheque was witnessed by some other person as claimed by the complainant, no such person was examined to prove the execution and issuance of the cheque. The learned Magistrate has also found that PW1 has admitted in cross examination that the accused is a fish vendor and the accused had helped PW1 to enroll people in LIC. PW1 has also admitted that the accused filed a complaint against the complainant-PW1. In paragraph 13 of the judgment of the trial court, the learned Magistrate has elaborately stated the case of the defence. 7. According to the learned Magistrate, when the accused was examined, she has deposed that the complainant has not paid the chitty amount and according to her, when the amount was demanded the complainant asked her to provide an young girl. It is also in her deposition that the complainant has repeatedly obtained money from her under threat. It is also deposed by DW1 Crl. L.P.NO.708 of 2011 7 that one of the cheques given by her in connection with the chitty transaction has been misused by the complainant to file a complaint in Ernakulam Court through another person. DW1 has further stated that she never felt need for Rs.1,50,000/-. DW1 further stated that she had preferred complaint against PW1, the complainant in the present case before the Dy.S.P., Kasargod and the Vanitha Cell. Ext.D1 is the complaint, thus preferred before the Dy.S.P. It is specifically stated in Ext.D1 that though the accused received only Rs.10,000/-, the complainant had obtained more than 2,00,000/-. The evidence of Dws.2 and 3 who are ladies and fish vendors support the case of DW1, the accused and they have also stated that the complainant cleared a loan of Rs.10,000/- each to six persons and two signed blank cheques of the accused was obtained as security. The trial court has also found that Ext.D2 to 4 documents proved by the defence would show that one Raju Thomas, S/o.Thomas, Chittezhath House, Narakkal, Ernakulam has filed a complaint u/s. 138 of NI Act against the accused and the trial court has further found that during cross examination of PW1, he had admitted that the said Raju Thomas is his relative who used to visit Kasargod. 8. Thus, on the basis of the above evidence and materials, Crl. L.P.NO.708 of 2011 8 the trial court has found that the defence version supported by the evidence of Dws.1 to 3, regarding the money transaction between the complainant and six fish vendors of Nairmoola has been probablised. The trial court, who got the opportunity to assess the demeanor of the witnesses and the parties to the proceedings after an elaborate consideration of the materials and evidence and its proper appreciation came into the conclusion that the defence version is more probable and the case put forward by the complainant is not genuine and bonafide. In the light of the evidence and materials referred to by the learned Magistrate, which I mentioned in the forgone paragraph appears the findings of the court below are correct. The entire facts and circumstances involved in this case would show that the complainant has miserably failed to prove the case against the accused beyond reasonable doubt, but whereas the evidence of the defence create strong doubt with the genuineness of the prosecution case. The contemporary documents produced by the accused and other attendant circumstances would further probablise the case of the defence. That being the position, according to me, even if an appeal is entertained, there is no scope for any interference with the findings of the learned Magistrate. Since the petitioner has Crl. L.P.NO.708 of 2011 9 miserably failed to establish any compelling reasons to interfere with the order of acquittal and to reverse the same, I am of the view that the order of acquittal cannot be interfered with even in a case, an appeal is entertained. Therefore, the petitioner is miserably failed to make out a case so as to grant leave u/s.378(4) of Cr.P.C. In the result, there is no merit in the petition, and accordingly, leave u/s.378(4) od Cr.P.C. is declined and this petition is dismissed accordingly. V.K.MOHANAN, JUDGE. pm/