IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 Crl.L.P..No. 1159 of 2010() -------------------------------------- ST.2678/2005 of J.M.F.C.,VAIKOM ........................... PETITIONER/COMPLAINANT IN ST.2678/05 ----------------------------------------------------------------- BIJU JOHN, SHANTHI BHAVAN,POOZHIKOLE P.O., KADUTHURUTHY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ACCUSED IN ST.2678/05 ------------------------------------ 1. SARO INDUSTRIES, REPRESENTED BY ITS PROPRIETOR,K.S.SOMAN, VELIYANNOOR P.O.,THAMARAKKAD, VELIYANNOOR VILLAGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROPRIETOR MR. K.S. SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 09/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SOU. K. HEMA, J ---------------------- Crl.L.P.No. 1159 OF 2010 ----------------------------------- Dated 9th day of December, 2010 O R D E R Petition to grant leave to appeal. 2. Appellant filed a complaint against first respondent alleging offence under section 138 of Negotiable Instruments Act on the allegation that the accused owed Rs.2,00,000/- to the complainant and when the amount was demanded, he issued a cheque for the said amount, drawn on the account maintained in his bank. The cheque, on presentation, bounced for want of sufficient fund. A lawyer notice was issued demanding payment. Notice was accepted but amount was not paid. Hence, a complainant was filed. 3. Complainant examined himself as PW1 and marked Ext.P1 to P6. The accused examined DW1 to DW3 and marked Ext.D1 to D5 on his side. According to him a signed blank cheque was misused by complaint. The cheque was issued to a person called “Universal Appachan” and not to the complainant. Accused took up a specific contention relating to a property transaction Crl.L.P. No.1159/10 2 with another person and also marked documents to establish that the cheque involved in this case is a blank one when he signed the same. 4. The trial court considered various aspects in detail in the judgment and found that the complainant could not identify the accused while a photograph of him was shown to PW1 while he was examined in court in the absence of accused. Accused was exempted from appearance and learned defence counsel showed a group photograph, from which complainant was asked to identify the accused. But he could not be identified by PW1. The trial court on analysis of of evidence adduced by accused and considering the probability of the same found that case set up by accused is probable and that the evidence adduced by complainant was unacceptable. Various reasons are shown in the order under challenge which are sound and proper. I do not find any reason to interfere with the order. 5. Learned counsel for the appellant submitted that only for the reason appellant could not identify the accused from the photograph, evidence of PW1 may not be discarded and accused ought not to have been acquitted. On going through the order under challenge, I find that there are several reasons to persuade Crl.L.P. No.1159/10 3 the trial court to come to a finding that complainant has not proved the case. The failure to identify the accused is also taken as a very strong reason. I do not find that this is a fit case to grant leave. Hence I am not inclined to grant leave. This petition is dismissed. K. HEMA, JUDGE. Sou.