A. Benet Vipin v. M. Jerome and State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 Crl.L.P..No. 335 of 2012 --------------------- CC.483/2006 of J.M.F.C.-II,TRIVANDRUM ## PETITIONER/COMPLAINANT: ---------------------- A.BENET VIPIN HOUSE, T.C.44/376, WATTS ROAD VALLAKKADAVU (PO), THIRUVANANTHAPURAM. BY ADVS.SRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR ## RESPONDENTS/ACCUSED & STATE: ------------------------------- 1. M.JEROME, PRIYADURSINI BHAVAN, VALIYATHURA WARD, VALLAKKADAVU (PO), THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.335 of 2012** ## **---------------------------------------------Dated this the 11[th] day of September, 2012** ## **ORDER** The complainant in a prosecution for the offence under Section 420 of the I.P.C. is the petitioner herein, who seeks leave to file an appeal against the order of acquittal of the court of the Judicial First Class Magistrate-II, Thiruvananthapuram in C.C.No.483 of 2006 by which the learned Magistrate acquitted the accused under Section 248(1) of Cr.P.C. 2. The case of the petitioner is that the accused borrowed a sum of `.4,50,000/- on 01/10/2001 and subsequently issued two cheques among which one is dated 25/01/2002 for an amount of `.3.5 lakhs and another cheque dated 01/12/2001 for an amount of `.1,00,000/- and when the above cheques presented for encashment were returned and dishonoured as there is “no such account”. Therefore according to the petitioner Crl.L.P.No.335/2012 : 2 : the accused cheated him and Section 420 of I.P.C. is attracted and raising such an allegation, a complaint was filed for the offence punishable under Section 420 of I.P.C. and after preliminary evidence a charge for the offence under Section 420 of I.P.C. was framed against the accused and he pleaded not guilty when the said charge was read over to him. Consequently PWs.1 and 2 were examined and Exts.P1 to P7 were marked from the side of the petitioner/complainant. The trial court after considering the entire evidences and materials came into a conclusion that no offence under Section 420 of I.P.C. is established against the accused as the petitioner/complainant miserably failed to make out dishonest intention of the accused at the beginning of the transaction and also found there is no inducement at the initial stage to constitute an offence under Section 420 of I.P.C. and accordingly the accused is acquitted under Section 248(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an Crl.L.P.No.335/2012 : 3 : appeal for which leave of this Court is sought for under Section 378 (4) of Cr.P.C. 3. I have heard Adv.Sri.Thomas Abraham counsel for the petitioner and I have perused the judgment of the trial court. 4. The learned counsel for the petitioner vehemently submitted that at the time of issuing Exts.P6 and P7 cheques the accused was aware of the fact that no such account was existing in his name at that time and therefore there is the element of cheating. But the trial court failed to consider the above aspect. 5. I have carefully considered the submission made by the learned counsel for the petitioner and I have gone through the judgment of the trial court and the findings of the court below on the basis of the evidence and materials referred to therein. In the light of the contentions advanced by the counsel for the petitioner and in the light of the findings of the court below supported by the evidence and materials on record the Crl.L.P.No.335/2012 : 4 : question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave as prayed for, otherwise whether the petitioner is succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the accused. 6. Admittedly the complainant has no case that the amount of `.4,50,000/- was given to the accused on 01/10/2001 as induced by the accused or the accused had maintained a fraudulent intention at the time when he received `4,50,000/-. Petitioner has also no case that the amount was parted on receiving the cheques in question. It is well settled that in order to attract the offence under Section 420 of I.P.C., the prosecution has to establish that the accused induced the complainant or the accused has maintained a fraudulent intention so as to obtain money fraudulently from the complainant. In the case on hand, the admitted case of the complainant is that the cheques in question granted later and not at the Crl.L.P.No.335/2012 : 5 : time of alleged borrowal of the amount. Therefore no fraudulent intention or inducement can be attributed and draw against the accused at the time of the initial transaction. If the accused promised to pay the amount borrowed and such an amount is parted then only a civil liability arises and complainant has to work out his civil remedy and the criminal proceedings cannot be launched to circumvent the civil proceedings for the realization of the money. In the light of the above facts and circumstances, according to me, the learned Magistrate of the trial court is fully justified in his finding and acquitting the accused. If that be so, even if an appeal is entertained, there is not even a remote scope for interfering with the finding of the court below and order of acquittal. 7. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, Crl.L.P.No.335/2012 : 6 : “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.” In view of the above decision, the appellate court has no jurisdiction to interfere with an order of acquittal recorded by the trial court unless it is shown that the judgment impugned is a perverse one. It is also the settled position of law that against an order of acquittal unless the petitioner or appellant makes out and compelling circumstance or substantial reason, the order of acquittal cannot be interfered with and thereby to disturb the double presumption available in favour of the accused. In the light of the facts involved in the case, it can be seen that the petitioner has no case that the trial court has overlooked any material or evidence which is Crl.L.P.No.335/2012 **==> picture [20 x 9] intentionally omitted <==** sufficient to attract the essential ingredients of Section 420 of I.P.C. Under the above circumstance, according to me, the petitioner has miserably failed to make out a prima facie case in support of the challenge against the order of acquittal and therefore the petitioner is not entitled to get leave as sought for. Accordingly the petition is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge