IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.L.P..No. 290 of 2011() ------------------------------- CC.159/2008 of C.J.M., ALAPPUZHA .................... PETITIONER/COMPLAINANT (S): ------------------------------------------ BAIJU G NATH, LAIJU NIVAS, SANATHANAM WARD, ALAPPUZHA, PIN-688001. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ RESPONDENT(S): ACCUSED AND THE STATE ------------------------------------ 1. GIRIJA KRISHNAKUMAR, W/O KRISHNANKUMAR, KRISHNA MANGALAM, VALAVANADU, ALAPPUZHA, PIN-688522. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. ADV. SRI.C.V.MANUVILSAN FOR R1 SRI.P.G.SURESH FOR R1 PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.L.P.No. 290 OF 2011 ----------------------------------- Dated 1st June, 2011 O R D E R This petition is filed to grant leave to file appeal against order of acquittal. 2. Petitioner is the complainant. He filed a complaint under section 138 of Negotiable Instruments Act on the allegation that accused borrowed Rs.2,50,000/- from the complainant and issued a cheque for the discharge of the said debt, which on presentation before the bank was returned unpaid for reason of insufficiency of fund and the accused did not pay the amount despite notice etc. 3. To prove prosecution case, PW1 was examined. Ext.P1 to P5 were marked. Accused examined herself as DW1. According to accused she had not issued any cheque to complainant but a cheque given to one Joy was misused by complainant to file the complaint. 4. Trial court, on analysis of the evidence, found that complainant has not proved execution of cheque or even transaction. Court below found that there is no evidence to show the availability of funds with the complainant or to show that he is Crl.L.P. No.290/11 2 rich enough to pay huge amount sought to be borrowed by accused. Likewise there is no evidence regarding the friendship of accused with the family of complainant. There is no evidence how the friendship developed, how long it continued so as to advance a huge amount of Rs.2,50,000/- without any security. No reason is stated anywhere in his evidence by PW1 to show such generosity. Parties are residing at different places in Alapuzha. Trial court in paragraph 6 considered the matter at length and held that there is no evidence to prove transaction or execution of Ext.P1. 5. Learned counsel for petitioner submitted that PW1 had given evidence that cheque was issued and amount was borrowed. It is also stated that notice was issued but no reply was sent. Regarding sending of notice, trial court considered the rival contentions in paragraph 8 and entered into the following finding: “The postal acknowledgment card for the receipt of Ext.P4 also not produced. Complainant has not stated whether the notice served to the accused or returned unserved. Therefore the evidence of Ext.P4 and P5 cannot be taken as an evidence of service of notice to the accused, enabling her to send reply denying the liability. Thus on analysis of the entire evidences, I am of the Crl.L.P. No.290/11 3 opinion that the prosecution has not proved the guilt of accused under section 138 of the Negotiable Instruments Act.” 6. Trial court also found that there is lack of evidence regarding execution of cheque and the relevant findings are in paragraph 7 and 8: “7. As the execution of cheque is not proved in any manner the complainant is not available with the presumption under section 139 of Negotiable Installments Act. There is no evidence for the passing of consideration for the execution of cheque. Mere admission of signature in Ext.P1 cheque does not prove a legally enforceable debt. The accused deposed that the cheque issued to one Joy, the plaintiff in O.S.No.97/2003 of Sub court, Alapuzha was mis-utilised by the complainant. There is no evidence to rule out the said allegation also. Thus the prosecution failed to prove the execution of Ext.P1 for a legally enfoceable debt or liability and the passing of consideration. 8. In the absence of evidence regarding the execution of the cheque, its dishonour brought out in evidence with Ext.P2 and Ext.P3 would not constitute the element of offense under section 138 of the Negotiable Instrument Act. The postal acknowledgment card for the receipt of Ext.P4 also not produced. Complainant has not stated whether the notice served to the accused or returned unserved. Therefore the evidence of Ext.P4 and P5 cannot be taken as an evidence of service of notice to the accused, enabling her to send reply denying the liability. Thus on analysis of the entire evidences, I am of the opinion that the Crl.L.P. No.290/11 4 prosecution has not proved the guilt of the accused under section 138 of the Negotiable Instruments Act.” 7. The reasons given by trial court to acquit the accused are sound and valid. I am not satisfied from the submission made by petitioner's counsel that such findings are perverse or suffer from any infirmity. Hence I am not inclined to grant leave. This petition is dismissed. K. HEMA, JUDGE. Sou.