IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 Crl.L.P..No. 711 of 2011() -------------------------- CC.38/2009 of J.M.F.C.-II,THRISSUR .................... (S): PETITIONER/COMPLAINANT ------------------------------------------ KRISHNASOPANAM KURIES (P) LTD., ARANATTUKARA, THRISSUR, REP.BY LITIGATION CLERK, RENJITH. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS -------------------------- 1. JAYAKUMAR, S/O.KRISHNAN, ANDOORAVALAPPIL HOUSE, P.O.PALLISSERY, PALAKKAL, THRISSUR. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ------------------------------ Crl. L.P.NO.711 of 2011 -------------------------------------------- Dated this the 16th 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 the complainant company is conducting kuri business and the accused availed a loan from the company for an amount of Rs.1,00,000/- and when the amount become due the accused issued cheque dated 9.1.2008 for Rs.1,00,000/-. According to the complainant, the said cheque when presented for encashment dishonoured as there was no sufficient funds in the account of the accused and the accused failed to pay the cheque amount within the stipulated period as demanded in the statutory notice and therefore, the accused has committed the offence punishable u/s.138 of the NI Act. With the above allegation and by filing a complaint, complainant approached the Judicial First Class Magistrate -II, Thrissur, whereupon cognizance was taken for the Crl. L.P.NO.711 of 2011 2 said offence and instituted CC No.308/2009. During the trial court, the prosecution has produced Ext.P1 to P6 document and examined PW1. No evidence either oral or documents produced from the side of the defence. The trial court has found that the complainant has miserably failed to prove the execution and issuance of the cheque and thus the complainant has failed to prove his case beyond reasonable doubt. It is the above finding an order of acquittal sought to be challenged by filing an appeal for which leave of this Court sought for u/s.378(4) of Cr.P.C. 3. I have heard Sri.V.Binoy Ram, learned counsel for the petitioner. I have also perused the judgment of the trial court. 4. The trial court, as indicated earlier, came into the conclusion that the complainant has miserably failed to prove the execution and issuance of the cheque and also passing of the consideration. Though PW1 was examined, according to the learned Magistrate, his evidence is not sufficient to prove the execution and issuance of the cheque. According to the learned Magistrate, the complainant has also failed to produce any documentary evidence in support of the claim of the complainant. It was under the above factual finding, the trial court acquitted the accused u/s.255(1) of Cr.P.C. Crl. L.P.NO.711 of 2011 3 5. Sri.V.Binoy Ram, learned counsel for the petitioner vehemently submitted that accused had admitted the signature in Ext.P1 cheque and the evidence adduced by the complainant through PW1, is sufficient to establish the case against the accused, but the trial court has miserably failed to appreciate the above evidence. Thus, according to the learned counsel the findings and the order of acquittal recorded by the trial court is liable to be interfered with. In the light of the above contention of the learned counsel and in view of the findings of the learned Magistrate, 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. The specific case of the complainant is that the accused availed a loan from the complainant company and loan amount was defaulted and therefore, on demand of the complainant, the accused issued the cheque in question. The only evidence available as per the judgment of the trial court is that of the evidence of PW1. The trial court has categorically found that PW1 has no direct knowledge regarding the execution and issuance of cheque by the accused. According to PW1, he deposed before the court on the basis of the documents available with the company. PW1 has Crl. L.P.NO.711 of 2011 4 also stated that he has no direct knowledge about availing of loan by the accused. He had also deposed that at the time of issuance of cheque, some of the staff and manager and managing director were present. PW1 has also deposed that cheque was not filled up by the accused, but the same was done by the friend of the accused. Regarding all these aspects, there is no evidence especially as to who execute the cheque, PW1 has no direct knowledge. Complainant has also not produced any other witnesses to substantiate the above part of the claim of the complainant, in spite of the fact that PW1 has categorically stated before the court that at the time of execution of cheque, the staff, manager, managing director of the company were present. It is also pertinent to note that, though the complainant has claimed that the loan amount was given to the accused through cheque, no bank details connected with the encashment of such cheque are not produced by the complainant. The trial court has also found that though the accused has filed Crl.M.P.No.5747/2010 for a direction, directing the complainant to produce the documents connected with the loan transaction, no such documents was produced and in lieu of that an affidavit is seen filed stating that documents were in the possession of the Crl. L.P.NO.711 of 2011 5 auditor. According to me, even if the said version of the complainant is admitted for the sake of arguments, there is no plausible explanation or convincing reason, for the failure on their part in adducing evidence from the bank, regarding the encashment of cheque, which issued, towards the disbursement of loan to the accused. From the above discussion and the materials which referred to by the learned Magistrate, it can be seen that the complainant has failed to substantiate its case against the accused that, the accused had executed the cheque in question and issued the same towards the discharge if any legally enforcible debt. In the light of the above facts and circumstances, I am of the view that the learned Magistrate is perfectly justified in holding that the complainant has not succeeded in proving its case beyond reasonable doubt. Therefore, the complainant is not entitled to get any presumption as contemplated u/s.139 of the NI Act. Therefore, according to me, there is no scope for any interference with the findings of the court below and order of acquittal recorded, even in case of an appeal is entertained. Hence the petitioner has miserably failed to make out a case so as to obtain leave of this court u/s.378(4) of Cr.P.C. Crl. L.P.NO.711 of 2011 6 In the result, there is no merit in the petition and accordingly, the leave u/s.378(4) of Cr.P.C. is declined and the petition is dismissed. V.K.MOHANAN, JUDGE. pm/