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. 351 of 2011() -------------------------- CC.405/2007 of J.M.F.C.,ERATTUPETTA .................... PETITIONER(S): -------------------- ABILASH K.MATHEW, KANDAMUNDAYIL HOUSE, CHENNAD P.O., KOTTAYAM DIST. BY ADV. SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENT(S): --------------- 1. JOSEPH ALEXANDER, ANDUKKUNNEL HOUSE, PAYAPPAR P.O., ANTHIYALAM, PALA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BABY THOMAS FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR 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.351 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 complaint. He filed a complaint against first respondent alleging offense under section 138 of Negotiable Instruments Act on the allegation that accused borrowed a sum of Rs.1,35,000/- from the complainant and for the discharge of the same, he issued a cheque in favouor of complainant, which on presentation in bank bounced for want of sufficient fund and in spite of sending lawyer notice demanding payment, payment was not effected. 2. To prove prosecution case, prosecution examined PW1 and marked Ext.P1 to P3. Accused examined himself as DW1 and DW2 on his side and marked Ext.D1. Trial court, after consideration of evidence in detail held that complainant has not established either the transaction or execution of cheque. In the absence of proving execution of cheque, presumption under section 139 cannot be drawn and acquitted the accused. Trial Crl.L.P. No.351/11 2 court considered merit of the case put forward by complainant as well as accused in detail. In the impugned judgment in para 11 and 12 following findings are entered into. “11. Complainant who had not stated the details of the transaction also had failed to speak on the details of the execution of the cheque either in his complaint or proof affidavit. In his complaint what all stated is that the accused had issued the cheque to him and when comes to the proof affidavit, he would say that the accused had signed the cheque and delivered the same to him. The complainant got no explanation for not mentioning he date, place or other details of the execution of the cheque and in fact there is no specific pleading or evidence on the execution of the cheque by the accused. In his cross examination, complainant would say that he is not aware who had written the name, date and amount in the cheque. 12. The complainant is conducting a private bank at Erattupetta and his case is that he had advanced Rs.1,35,000/0 to the accused on some day; without obtaining any document and subsequently on another day he obtained the cheque for the amount advanced by him. The accused is conducting business on building materials at Pala and the complainant had not placed anything to believe that he had extended his benevolence of advancing such a huge amount to the accused without any interest; that too without obtaining any document for the transaction. The cross examination of the complainant will go to show that he is not aware of even the family details of the accused. The complainant had stated that he had raised the fund advanced to the accused from Kakkanattu Rubbers at Chennadu, owned by Crl.L.P. No.351/11 3 one Kuttiyachan. But th said Kuttiyachan, when examined as DW1 had denied that he had advanced any such amount to the complainant.” On hearing petitioner's counsel and on going through the above observations and findings I do no find those are perverse. Learned counsel for petitioner argued that complainant has given evidence regarding the execution of cheque and explanation given by accused as how the cheque reached the hands of complainant is not acceptable. It is also argued that complainant denied each of the suggestions made by accused in the cross examination but trial court did not take into consideration the above facts. On hearing both sides and on going through the impugned order I find that the contentions raised by the appellant were looked into by trial court and it was that when Ext.D1 was confronted with PW1, he was not able to deny the suggestions and he pleaded ignorance of the same. Such finding is only consistent with the evidence recorded in this case. The following observations are made in para 13 of impugned order: “The defense version of the accused is that he had issued Ext.P1 in blank to the complainant for availing a loan of Rs.27,000/- on 11/1/2007; which amount with interest was repayable in 100 daily Crl.L.P. No.351/11 4 installments of Rs.300/-. His further case is that he who paid installments for 19 months could not continue the payment and the complainant filed this case after misusing the blank cheque got signed from him. The accused as DW2 had deposed his above case and marked a card printed with serial number up to 100 and space for dates; which according to him was supplied by the complainant while the sum of Rs.27,000/- was advanced to him. The accused would argue that the said card is written in the handwriting of the complainant and is acknowledging the receipt of 19 installments. Even though the complainant had cross-examined the accused, nothing has been made available to disbelieve his above case. On the other hand; the complainant when put with the suggestions on the defense case, did not dare to make a firm denial of the same; but only answered evasively. When confronted with Ext.D1 also, the complainant was not able to deny the suggestions on the same and he only pleaded ignorance on those aspects.” On going through the impugned judgment and on hearing petitioners counsel, I do not think the order suffers from any infirmity or perversity. I do not find any reason to grant leave. This petition is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True Copy // P.A. to Judge. Crl.L.P. No.351/11 5