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. 1160 of 2010() --------------------------------- ST.2654/2005 of J.M.F.C.,VAIKOM .................... PETITIONER/COMPLAINANT IN S.T.2654/05 --------------------------------------------------------- E.K.SHAJI,INJIKALA HOUSE,POOZHIKODE.PO, KADUTHURUTHY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): ACCUSED IN S.T.2654/05 ------------------------------------- 1. SARO INDUSTRIES,REPRESENTED BY ITS PROPRIETOR,K.S.SOMAN,KOODATHINAL(H),VALIYANOOR.PO, THAMARAKKAD,VELIYANNOOR VILLAGE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,KOLLAM. PUBLIC PROSECUTOR MR. M.R VENUGOPAL 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.1160 OF 2010 ----------------------------------- Dated 9th 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 PW1 and 2 and marked Ext.P1 to P6. Accused examined DW1 to DW3. Documents D1 to D6 also marked. According to accused cheque involved int his case is misused by complainant in collusion with one Appachan to whom accused has issued two signed blank cheques when he borrowed Rs.2,00,000/-. On an analysis of evidence in detail, the trial court Crl.A. No.1160/10 2 found that case set up by accused is more probable and that to substantiate the claim made by complainant there is only evidence of complainant, which was not quite acceptable. He could not even identify the accused from the group photo, which was shown to him by learned defence counsel at the time of examination of PW1 in the absence of accused, who was exempted from personal appearance. 4. The trial court discussed evidence of PW1 and 2 regarding the identification. Both of them gave contradictory statement on the complexion, height etc. The defence highlighted this circumstances to negative the claim made by complainant that amount would have been given to accused and the cheque, Ext.P1 was issued. 5. 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 evidence adduced by complainant was unacceptable. Various reasons are shown in the order under challenge to support order of acquittal. I do not find any reason to interfere with the order. 6. Learned counsel for the appellant submitted that only for the reason appellant could not identify the accused from the Crl.A. No.1160/10 3 photograph it was not proper to discard evidence of PW1 and acquit the accused. On going through the impugned order, I find that there are several reasons to persuade the trial court to come to a finding that complainant did not prove his case. The failure to identify the accused is also taken as a very strong reason to support the other findings. 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.