IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 Crl.L.P..No. 919 of 2011 --------------------------------- CC.658/2009 of THE JUDL.FIRST CLASS MAGISTRATE, VADAKKANCHERRY .................... PETITIONER/COMPLAINANT: --------------------------------------- SOLAR INDUSTRIES, CHELAKARA, REP.BY ITS MANAGING PARTNER JESSY RAJAN, W/O.RAJAN, THOLATH HOUSE, SANTHI ROAD, CHEMBUKAVU P.O., THRISSUR THROUGH HER POWER OF ATTORNEY HOLDER C.VASUDEVAN, S/O.C.BALAGOPAL, PRASADAM, THIROOR, MULANKUNNATHUKAVU, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ACCUSED AND STATE OF KERALA. ----------------------- 1. K.SURESAN, S/O.BALAKRISHNAN, GOVERNMENT CONTRACTOR, THEERTHAM, KAPPAD P.O., KANNUR DISTRICT-670 001. 2. THE STATE OF KERALA, REP.BY THE PUBLIC PRSECUTOR, HIGH COURT OF KERALA, AT ERNAKULAM-682 031. R2 BY PUBLIC PROSECUTOR SMT. LALISA THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.LP. No. 919 of 2011 ---------------------------------------- Dated the 28th day of October, 2011 ORDER The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the petitioner herein, who seeks special leave under section 378(4) of the Criminal Procedure Code (for short 'the 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 under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused has purchased pipes from the complainant institution and towards the discharge of the said liability, the accused issued a cheque dated 23.5.2009 for Rs.54,353/- to the complainant, and when the said cheque presented for encashment it was returned unpaid due to insufficiency of funds in the account maintained by the accused and the accused has not repaid the cheque amount in spite of the notice issued by the complainant and received by the accused and therefore, according to the petitioner, the accused has committed the offence punishable under section 138 of the NI Act. Thus, with the said allegation, by fling a complaint, the complainant approached the Judicial First Class Magistrate, Wadakkancherry, wherein C.C.No.658 CRLP 919 /11 2 of 2009 is instituted and during the trial of the case, PWs 1 and 2 were examined from the side of the complainant and produced Exts.P1 to P10 documents. No witness was examined from the side of the defence, but Exts.D1, D1(a) & (b) were produced and marked. The trial court has finally found that the accused has rebutted the presumption but the complainant has failed to prove the case including the existence of liability and execution of Ext.P1 cheque and thus it was concluded that the complainant has failed to prove that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt. Consequently, the accused is acquitted under section 255(1). It is the above finding and order of acquittal sought to be challenged for which leave of this court sought for under section 378(4) Cr.P.C 3. I have heard Sri Sreekumar G.Chelur, the learned counsel appearing for the petitioner and I have carefully perused the judgment of the trial court. 4. The learned Magistrate after evaluation of the evidence , particularly, the evidence of PW1, has found that he is not aware of anything regarding the transaction and he has also deposed that his knowledge is only on referring the documents available with the complainant in respect of the transaction. The learned CRLP 919 /11 3 Magistrate has also found that no such document is produced by the complainant. It is also found that, PW1 has admitted that there is the practice of receiving post dated cheques from customers at the time of selling pipes on credit basis. Thus the trial court has found, in the light of the admission of PW1 and in the absence of documents connected with the transaction claimed by the complainant, that the complainant has failed to prove its case. It is relevant to note that the specific case taken by the defence is to the effect that by admitting the transaction with the complainant, he had paid a sum of Rs.3,00,000/- as evident by Ext.D1, D1(a) and (b) respectively and according to the defence, the cheque in question was not the one executed and issued by the accused as claimed by the complainant whereas according to the defence, Ext.P1 was entrusted with the complainant as a security at the time of purchasing the materials. 5. The learned counsel for the appellant submitted that the petitioner/complainant is entitled to get the statutory presumption since the accused has admitted the execution and issuance of the cheque and he has not produced any evidence to substantiate his version and therefore, the learned Magistrate is wrong in holding that the complainant has not proved the case especially regrading the CRLP 919 /11 4 execution and issuance of the cheque. 6. In the light of the arguments advanced by the counsel for the petitioner and in the light of the findings of the court below, based upon the materials referred to in the judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant special leave to file an appeal against the judgment which sought to be impugned. In the light of the facts stated in the judgment and in the light of the arguments advanced by the counsel for the petitioner, it appears that there were frequent transaction between the complainant and the accused connected with the sales of pipe, a business undertaken by the complainant. The specific case of the complainant is that, towards the discharge of the liability connected with the such transaction, the accused issued Ext.P1 cheque for an amount of Rs.54,353/-. But the case of the accused is that Ext.P1 cheque was obtained by the complainant as a security at the time of supply of the materials and he never executed and issued Ext.P1 cheque as claimed by the complainant. It is also the case of the defence that no such amount as shown in Ext.P1 is due to the complainant connected with the transaction . 7. On a scanning of the judgment of the trial court, it can be seen that in order to prove the transaction, the execution and CRLP 919 /11 5 issuance of the cheque, the complainant has examined PW1. During his examination, he had deposed that his knowledge regarding the transaction is only on the basis of the documents which he referred and the documents which are available with the complainant, and as rightly observed by the learned Magistrate, the defence has succeeded in eliciting from PW1 that there is a practice of obtaining cheques, to secure credit transactions by customers of the complainant. In this juncture, it is also relevant to note that the accused has taken the contention during the trial that he had paid Rs.3 lakhs as evidenced by defence exhibits and as such no amount is due to the complainant. In short, it can be seen that though PW1 was examined to prove the case of the complainant, he has no direct knowledge but in his deposition it is stated that he is not aware of anything regarding the transaction and he has also deposed that his knowledge is only on the basis of referring the documents available with the complainant in respect of the transaction. If that be so, for a proper appreciation of the evidence of PW1, the documents connected with the transaction are absolutely necessary, and the same are with the complainant. But though the liability claimed by the complainant is disputed by the accused, the best evidence which is available with the complainant is not produced before the court in CRLP 919 /11 6 spite of the fact that PW2 was examined and produced Ext.P8 and P9 , after recalling PW1. So the best evidence available with the complainant is kept away from the scrutiny of the court. Thus on a consideration of the facts and circumstances involved in the case and in the light of the materials referred to by the court below as seen from the judgment, it can be seen that the case of the accused is probablised on the basis of the admission obtained by the defence from the prosecution witness namely PW1 that there was a practice of receiving cheques as security from the customers. Though the accused took a contention that he paid Rs.3 lakhs, connected with the transaction which claimed by the complainant, still then, the complainant never produced the documents which is available with him. If that be so, it can be presumed that, if that document is produced, the same will go against the complainant. If that be so, according to me, the learned Magistrate is fully justified in his finding that the accused has rebutted the presumption and the complainant has failed to prove the execution and issuance of Ext.P1 cheque. Therefore, there is no merit in this petition so as to grant leave as sought for and even if an appeal is entertained, there is no scope for any interference with the finding of the court below. In the light of the above discussion and the materials referred to CRLP 919 /11 7 above, I find no reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. In the result, there is no merit in this petition and accordingly, the same is dismissed declining leave under section 378(4) Cr.P.C V.K.MOHANAN, JUDGE kvm/-