## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN**
**WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934**
**Crl.L.P..No. 469 of 2012 ()**
**---------------------------**
**(AGAINST THE ORDER IN CC.716/2010 of J.M.F.C.-II, THRISSUR, DTD.27.4.2012)**
## **PETITIONER/COMPLAINANT:**
**----------------------**
**A.A.ENSON, AGED 27 YEARS S/O.ANTONY, ARAMBOOR HOUSE, P.O.PARALAM THRISSUR DISTRICT.**
**BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA**
## **RESPONDENT(S)/ACCUSED AND STATE:**
**---------------------------------**
**1. DINO DAISON, S/O.DAISON, ELUVATHINGAL HOUSE, P.O.CHOVOOR THRISSUR DISTRICT-680 001.**
**2. THE STATE OF KERALA**
**REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.**
**BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR**
**THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 08-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**ami/**
## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.469 of 2012**
## **------------------------------Dated this the 8[th] day of August, 2012.**
## **O R D E R**
The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 27.4.2012 in C.C.No.716 of 2010 of the court of the Judicial First Class Magistrate-II, Thrissur, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.
2. Heard Sri.Santhosh P.Poduval, learned counsel for the petitioner and I have perused the judgment which sought to be impugned.
3. Learned counsel for the petitioner vehemently submitted that the learned Magistrate on an improper consideration of irrelevant facts came into a conclusion
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that the execution of Ext.P1 cheque is highly suspicious in the present case and consequently held that the petitioner/ complainant did not prove his capacity to lend such a huge amount to the accused. According to the counsel, it is on the basis of the above observation and finding, the learned Magistrate proceeded to hold that the complainant has not proved his case against the accused. According to the learned counsel, the learned Magistrate has also went wrong in holding that the complainant has no capacity to release such a huge amount of `5,25,000/- to the accused and those findings were without considering the evidence of PW1/the complainant. It is also the submission of the learned counsel that the accused did not make any reply to Ext.P4 lawyer notice. According to the learned counsel, as the accused has admitted the partnership firm conducted by the complainant, the learned Magistrate ought not have disbelieved the case of the petitioner/complainant and the circumstances under which the amount was borrowed by the accused who subsequently issued Ext.P1 cheque.
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According to the counsel, the learned Magistrate has omitted to note that, even the accused has no case that there was any dispute between the complainant and the accused. Therefore, according to the learned counsel, the findings of the court below and the order of acquittal are liable to be set aside, in case, an appeal is entertained for which, leave of this Court is absolutely necessary.
4. The crux of the allegation of the complainant is that the accused borrowed a sum of `5,25,000/- and towards the discharge of the said liability, the accused has issued Ext.P1 cheque after its due execution. Whereas, the specific defence taken by the accused is that the cheque which was signed and kept, in the partnership firm that was run by the complainant as well as the accused, for the purpose of remitting kuri amount was misused by the complainant and filed this case. Ofcourse, the complainant who examined as PW1 denied the above suggestion. The learned Magistrate after considering the evidence and materials on record has found that, the version of PW1-the complainant
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is that the accused brought the cheque after filling the same and signed in the presence of the complainant. The learned Magistrate has further found that there is no case for the complainant that the cheque was written by the accused in front of him. According to the learned Magistrate, the claim of the complainant that the accused put the signature in the cheque in his presence after bringing the filled up cheque, is not probable and believable version. Towards the above conclusion, the learned Magistrate has also assigned some reasons. It is also observed by the learned Magistrate that the complainant had admitted in the cross examination that he was having an amount of only `50,000/- in his account during that time. The learned Magistrate has also found that the complainant/PW1 has admitted during the cross examination that he subscribed to some kuries for the purpose of partnership business. The learned Magistrate has also found that both the complainant and the accused were in their twenties and the amount involved was very
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huge. The learned Magistrate in para 8 of the judgment sought to be impugned has also found that, the complainant has not produced any documents to show that the amount of `5,25,000/- was with him during the relevant period. According to the learned Magistrate, PW1 did not remember the date on which the amount was given to the accused. Therefore, the learned Magistrate has found that it is not probable and believable that PW1 who is a youngster, aged only 26 years old, could forget the date of lending the money that too a huge amount of `5,25,000/-. It is on the above evidentiary background, the learned Magistrate considered the contention put forwarded by the accused and held that the contention of the accused is more probable and believable that the cheque, which was kept in the partnership firm, was misused by the complainant and filed this case. The learned Magistrate has also found that the accused has contended that the purpose, for which the amount was lend by the complainant, was also not stated by him in the complaint. Thus, on the basis of the above
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materials and evidence, the learned Magistrate has found that the story put forwarded by the complainant is not believable in the light of the facts and circumstances of the present case. According to me, the reasons assigned by the learned Magistrate, in support of his findings and the order of acquittal, in the judgment sought to be impugned, on the basis of the given facts and circumstances of the case, are rational and justifiable.
5. The learned counsel for the petitioner read over to me the averments of the complainant in the complaint, in which there is no whisper about the partnership firm conducted by the complainant and the accused. The complainant who examined as PW1 has stated about the partnership firm only when the accused had cross examined him to that effect. It is also relevant to note that the learned Magistrate has specifically found that in the complaint, there is no specific averment as to when the amount was lend by the complainant to the accused. According to me, the reasons assigned by the learned
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Magistrate to disbelieve PW1 are appear to be correct, since the sum of `5,25,000/- comparatively is not a small amount and if that be so, definitely the same should have been in the memory of PW1. But there is no such averment
in the complaint and no exact date is mentioned in the deposition. It is also relevant to note that regarding the execution and issuance of the cheque, the complainant has no specific and believable story. The learned Magistrate has found that the case of PW1 regarding execution of the cheque is that, the accused brought up the filled up cheque and signed it before PW1. Now, from the judgment sought to be impugned, the learned Magistrate has not referred to any explanation, if any offered by the complainant, for adopting such a practice. Normally, unless the drawer of the cheque is an illiterate person, there was no necessity to bring a filled up cheque and put the signature in front of PW1. Thus, regarding the transaction with respect to the availing of the loan by the accused and the execution and issuance of the cheque, the complainant has no believable
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and acceptable case. The absence of averment in the complaint that the complainant and the accused were partners, and also the absence of averment in the complaint regarding the date, place etc. with respect to the borrowal of the money and the ignorance of the complainant about the purpose for availing the loan by the accused etc. are very relevant, particularly in the backdrops of the defence taken by the accused to the effect that the signed cheque kept in their partnership firm for the purpose of remitting the kuri amount was misused by the complainant. In **Narayana Menon Vs. State of Kerala [2006(3) KLT 404 (SC)]** , the Honourable Apex Court has held that, “For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon”. Thus, on an examination of the facts and circumstances involved in the case, and keeping in mind the dictum laid down by the Apex Court in the above decision, I am of the view that, the learned Magistrate who had occasion to
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observe the demeanor of the parties, had come into his finding after due appreciation of evidence and materials on record, and the said finding warrants no interference. If that be so, even if an appeal is entertained, there is not even a remote scope for any interference with the findings of the court below and the order of acquittal.
6. The Apex Court in a recent decision reported in **State of Rajasthan v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has considered the jurisdiction of the appellate court to interfere with the order of acquittal. The apex court has held:
“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.”
On an examination of the facts and circumstances involved in the case and the findings of the court below in the light of
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the dictum laid down in the above decision, it can be seen that the petitioner has miserably failed to make out a prima facie case or any exceptional or substantial reasons to interfere with the findings or the order of acquittal, even if an appeal is entertained. If that be so, according to me, there is no merit in this petition.
In the result, this petition is dismissed as it is devoid of any merit.
Sd/- **V.K.MOHANAN, Judge**
ami/
//True copy//
P.A. to Judge
