IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.L.P..No. 762 of 2011() -------------------------- ST.308/2009 of J.M.F.C.-II,PATHANAMTHITTA .................... (S): PETITIONER/COMPLAINANT: ------------------------------------------- MUTHOOT VEHICLE AND ASSET FINANCE LTD., MUTHOT CHAMBERS, 2ND FLOOR, KURIAN TOWERS,BANERJI ROAD, ERNAKULAM, REP.BY ITS POWER OF ATTORNEY HOLDER MISS,SREEDEVI RADHAKRISHNAN, AGED 25 YEARS, D/O.LATE P.B.RADHAKRISHNAN, PAYYAPILLY HOUSE, ALIYAR ROAD, MALIPURAM P.O., COCHIN-11. BY ADV. SRI.SABU S.KALLARAMOOLA RESPONDENT(S): --------------- 1. P.K.MADHU, S/O.NEDUMPALA HOUSE, KULATHOOR P.O., VAIPUR, KOTTANGAL MALLAPALLY, PATHANAMTHITTA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.L.P.No.762 of 2011 ------------------------------------ Dated this the 24th 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 connected with a vehicle loan transaction between the complainant company, who is the petitioner herein and the respondent/accused a sum of Rs.22,300/- was due to the complainant and towards the discharge of the said liability the accused issued Ext.P2 cheque dated 23.9.2008 for an amount of Rs.22,300/-, and when the said cheque presented for encashment the same was dishonoured and as no amount was paid in spite of a statutory notice, the complainant approached the Judicial First Class Magistrate-II, Pathanamthitta by filing a complaint alleging the offence u/s.138 of the NI Act, based upon which, cognizance was taken and instituted ST No.308/2009. During the trial, Pws.1 and 2 were examined from the side of the complainant Crl.L.P.No.762 of 2011 2 and produced Exts.P1 to P9. No evidence either oral or document produced from the side of the defence. The trial court after considering the case, the evidence and materials came into the conclusion that Ext.P9 document produced by the complainant is not sufficient to hold that the accused is indebted to the complainant, so as to issue Ext.P2 cheque, to clear any such liability. It is the above findings and the consequent order of acquittal sought to be challenged for which leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard, counsel for the petitioner and I have also perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that though the installment amount received not entered on 29.11.2007, subsequent to that date those installments were shown in Ext.P9 account and therefore, the findings of the court below is not correct. It is also the submission of the learned counsel that Ext.P9 is the statement of account extract from the account maintained by the petitioner/appellant in the computer and the same has got the sanctity u/s.65 of the Evidence Act. In the light of the evidence and materials referred to by the learned Magistrate in the judgment and his findings and in view of the arguments advanced by the learned counsel for the petitioner, Crl.L.P.No.762 of 2011 3 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. 5. The crux of the prosecution allegation is that, the accused issued Ext.P2 cheque towards the discharge of the liability which arose out of the hypothecation agreement between complainant and the accused. According to the defence, no amount is due connected with the transaction between the complainant and accused and it is the specific case of the defence that, at the time of availing the loan the complainant had obtained 36 cheque leaves as security and Ext.P2 cheque is one among the same and according to the defence, he never executed and issued the cheque towards the liability that claimed by the complainant. According to the complainant and as per the evidence of PW1, the accused had availed a loan of Rs.34,100/- on 9.1.2006 which was pre-payable in 36 equal monthly instalments and EMI amount is Rs.1,340/-. According to PW1, the accused remitted only 13 instalments. The complainant has produced Ext.P9, which is the computer bill of statement of account to the said loan transaction. PW2, who was examined on behalf of the complainant, has deposed that Ext.P9 bears his signature. The trial court has found that both Crl.L.P.No.762 of 2011 4 PWs.1 and 2 admitted that the loan period end by December, 2008. According to PW2, as observed by the learned Magistrate, the cheque was issued when the instalments 23rd to 33 were in due. But the cheque was issued for the entire instalments. According to PW1, the vehicle in question was for sold for Rs.13,700/- on 29.11.2007. Thus, the trial court has found that there is a discrepancy with respect to the sale of the vehicle in the evidence of Pws.1 and 2. It is in the above background, the trial court has consider Ext.P9 document produced by the complainant. According to PW1 and 2 the sale proceed were adjusted to the loan amount. But the trial court has found that it is doubtful as to how the amount received on 29.11.2007 are shown in the entry relating to the instalment starting from 14 to 22nd. The trial court has further found that if the accounts stated in Ext.P9 are maintained during the regular course of business, normally, the amount received on 29.11.2007 should be shown in the entry made on the particular day only and the column for making entry relating to the previous instalment should be left and blank. Thus, it is the specific finding of the learned Magistrate that Ext.P9 entries are not made in such a manner. The submission made by the learned counsel for the petitioner is that even though no entry was made on 29.11.2007, the entries Crl.L.P.No.762 of 2011 5 were made subsequent to that date and therefore, Ext.P9 is correct and the same can be acted upon. I am unable to sustain the above contention especially in the light of the contention advanced by the defence with respect to Ext.P2 cheque. According to the accused, the complainant had obtained 36 cheque leaves as security at the time of availing the loan and Ext.P2 is one among such cheque leaves and there is no such amount is due and he never executed Ext.P2 cheque for discharging such liability as claimed by the complainant. It goes without saying that Ext.P9 is the computer print out taken from the account, maintained by the complainant in their own computer and though Ext.P9 bears the signature of PW2, the same is not certified or audited by any other Govt. approved agency. Even though, the account claimed to maintained by the complainant properly and it is claimed that its entries are made in the regular course of business, there is no explanation as to the failure of the complainant in making the endorsement with respect to the sale proceed related to the vehicle in question on 29.11.2007, which claimed to have sold on 29.11.2007. Therefore, according to me, the learned Magistrate is right in doubting the veracity and correctness of the account that shown in Ext.P9 account. In the light of the above findings and Crl.L.P.No.762 of 2011 6 observation of the learned Magistrate on the basis of the materials and evidence referred in the judgment, according to me, it cannot be held that the complainant has established that the amount shown in the cheque in question was due to the complainant and further the accused had executed and issue the cheque to the complainant. In the light of the above facts and circumstances, I am of the view that the learned Magistrate is fully justified in his finding and the order of acquittal. Therefore, even if an appeal is entertained, there is no scope for any interference with the finding and the above discussion would further show that there is no compelling or substantial reason to interfere with the order of acquittal recorded by the learned Magistrate. Therefore, the petitioner is miserably failed to make out a case to grant special leave. In the result, there is no merit in this petition and accordingly, the special leave sought u/s.378(4) of Cr.P.C is declined, and the petition is dismissed. V.K.MOHANAN, JUDGE pm/