Amakkattu Finance, Vazhoor v. State of Kerala and V.J. Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 24TH DAY OF JULY 2017/2ND SRAVANA, 1939** ## **Crl.L.P..No. 253 of 2017** ## **------------------------------------** ## **S.T.NO. 25/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KANJIRAPPALLY** ## **----------------** ## **PETITIONER(S)/COMPLAINANT :** **-------------------------------------------------** **AMAKKATTU FINANCE, VAZHOOR, REPRESENTED BY ITS PROPRIETOR, A.C NINAN, S/O. CHANDI, AMAKKATTU HOUSE, VAZHOOR, KOTTAYAM.** ## **BY ADV. SRI.K.M.VARGHESE** ## **RESPONDENT(S)/STATE AND ACCUSED :** **--------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2. V.J.JOSEPH, S/O. JOSEPH, VADAKKEL HOUSE, KARINILAM P.O, MUNDAKKAYAM, KOTTAYAM DISTRICT, PIN 686 513.** ## **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 24-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** ALEXANDER THOMAS , J. - - - - - - - - - - - - - - - - - Crl.L.P.No.253 of 2017 - - - - - - - - - - - - - - - - - Dated this the 24[th] day of July, 2017 **==> picture [65 x 11] intentionally omitted <==** This is an application seeking special leave of this Court under Section 378(4) of the Code of Criminal Procedure, 1973 for instituting criminal appeal so as to impugn the judgment dated 29.04.2017 rendered by the Judicial First Class Magistrate Court- III, Kanjirappally in S.T.No.25/2016, whereby the accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner herein is the complainant in S.T.No.25/2016. 2. Heard Sri.K.M.Varghese, the learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, the learned Public Prosecutor appearing for the 1[st] respondent State. 3. The gist of the prosecution case is that the petitioner is a proprietor of a money lending proprietary concern, which has been registered under the provisions of the Kerala Money Lenders Act, 1958 and has been conducting his lending business from his office at Vazhoor and that the accused had borrowed Rs.4 lakhs from the complainant on 30.01.2014 by undertaking to repay the 2 Crl.L.P.No.253 of 2017 same together with the interest @ 16% per annum and had executed a demand promissory note. The complainant demanded the accused to repay the principal and the interest thereon and in discharge of the debt the accused had issued the instant Ext.P1 cheque dated 15.11.2014 for Rs.4,50,845/- drawn from his account and payable in favour of the complainant. The cheque, when presented, was dishonoured on the ground of insufficiency of funds. This led to the complainant issuing Ext.P4 statutory demand notice dated 9.12.2014 calling upon the accused to pay off the amount covered by the cheque, within a period of 15 days from the date of receipt of the said notice. The accused had received the said notice by registered post as per Exts.P5 and P6, but had not responded to the same. After following the requisite formalities, the complainant has initiated the present complaint, which has led to the trial. 4. During trial, proprietor of the complainant concern has been examined as PW1 and has marked Exts.P1 to P7 documents. The defence has adduced oral evidence of DW1. 5. By the impugned judgment the trial court has found that the accused has entitled for the benefit of acquittal in view of 3 Crl.L.P.No.253 of 2017 the following reasons:- (A) It is not in dispute that the payee of the dishonoured cheque in question is 'M/s.Amakkattu Finance, Vazhoor'. Section 142(1)(a) of the Negotiable Instruments Act mandates that “notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque”. The Apex Court has held in **Milind Shripad Chandurkar v. Kalim M. Khan & another [2011(1) KLD 377 (SC)] = [2011(4) SCC 275]** that when the payee is a proprietary concern, the complainant has to necessarily establish that the cheque has been either issued to him or in his favour or that he is the sole proprietor of the proprietary concern and being so, he could also be payee himself and thus, entitled to make the complaint etc. In the instant case, the best evidence in that regard which would show that the petitioner is the proprietor of the said concern was to bring registration details of the said firm under the provisions of the Kerala Money Lenders 4 Crl.L.P.No.253 of 2017 Act. The trial court has found that non-production of the money lending licence and the other requisite documents maintained by the complainant, would be fatal in the facts of this case. The trial court found that though the accused had challenged the competence of PW1 to lodge this compliant, no records to show that PW1 is in fact the proprietor of the complainant proprietary concern has been tendered in evidence and no reasonable explanation is tendered for non-production of such vital records, so as to connect PW1 with the complainant proprietary concern. Even though PW1 has deposed that the proprietary concern is having valid money lending licence under the provisions of the Kerala Money Lending Act, the same has not been tendered in evidence to substantiate that PW1 is the proprietor of complainant proprietary concern. The trial court cannot be found fault with in taking a view that the case of the complainant is liable to be thrown out on this ground alone. - (B) Though the complainant tried to place reliance on Ext.P7 promissory note, wherein it is stated that PW1 is the proprietor of the proprietary concern etc., the trial court 5 Crl.L.P.No.253 of 2017 found that Ext.P7 promissory note was not produced along with the complainant at the time of the institution of the complaint and its subsequent production has constrained the trial court to view the said document with suspicion regarding its authenticity etc. (C)Further, the trial court found that a money lender of ordinary prudence would not have lent such huge amount of Rs.4 lakhs without obtaining any document to prove the assets of the borrower. PW1 has deposed that it is on the basis of Ext.P7 promissory note that the borrowal took place on 30.01.2014 etc. Though PW1 claims that he maintains proper accounts with respect to the finance concern, and that it is having proper registration under the Kerala Money Lenders Act etc., no documents like proper registers, vouchers, ledger extracts relating to the financial dealings has been produced by the complainant. The trial court found that these are the best evidence in the possession of the complainant and withholding of the said best evidence should lead to drawing adverse inference against the complainant's case. 6 Crl.L.P.No.253 of 2017 (D)The trial court has found that the principal amount claimed in the complaint is Rs.4 lakhs and that no documents were produced before the court to show as to how the extra amount of Rs.50,845/- has been charged as interest etc. No proper statement of accounts has been tendered to prove the mode and manner of computation of the sum of Rs.50,845/- which is reflected in the cheque amount of Rs.4,50,845/- so as to throw light as to how the interest amount has been calculated and added to the principal amount. The trial court has also found that the complainant has not bothered to produce the accounts book which is said to be maintained by him. Though the case of PW1 is that he has strictly maintained all the necessary documents and accounts in terms of the provisions of the Kerala Money Lenders Act, he has not produced the account ledger pertaining to the petitioner's account to show as to the financial transactions as well as the basis on which the interest amount of Rs.50,845/- was calculated. Failure to produce the account statements and the account ledgers pertaining to the individual transaction to the accused, has 7 Crl.L.P.No.253 of 2017 constrained the trial court to hold that the transactions alleged by the complainant is not credible one. It is in the light of these crucial findings of facts that the trial court has rendered the judgment of acquittal in favour of the accused. The said factual appreciation and the conclusions arrived at by the trial court cannot be said to be perverse or illegal. Merely because another view is plausible, is no ground to upturn a considered judgment of acquittal rendered by the trial court in favour of the accused. 6. Sri.K.M.Varghese, learned counsel appearing for the petitioner/complainant would submit that complainant is maintaining all the documents and registers strictly under the provisions of the Kerala Money Lenders Act, 1958 and that the impugned judgment of acquittal on the ground that he had not produced the requisite documents would lead to miscarriage of justice and hence this Court may pass necessary directions so that the complainant will get a further opportunity to adduce evidence in that regard before the trial court, etc. The said contentions raised by the complainant cannot be countenanced by this Court. When the complainant has been afforded 8 Crl.L.P.No.253 of 2017 reasonable opportunity to present his complaint and to adduce evidence in the trial, failure on the part of the complainant to adduce evidence on vital and crucial aspects, cannot be alleviated by granting a fresh opportunity to the complainant. That would amount to great miscarriage of justice as far as the rights of the accused is concerned. Therefore, the said plea made by the complainant is overruled. 7. Sri.K.M.Varghese, the learned counsel appearing for the petitioner/complainant would also submit that this Court may clarify that the acquittal of the accused shall not in any manner prejudice the rights of the complainant in filing appropriate civil suit for recovery of the money covered by the dishonoured cheque in question. This Court is now considering only the issue of grant of leave for filing criminal appeal and if the petitioner has a legal right to file civil suit as claimed by him, it is for him to proceed strictly in accordance with law. 8. In the case **State of Rajasthan v. Darshan Singh @ Darshan Lal** reported in **2012 (4) Supreme 72 = (2012) 5 SCC 789** , the Apex Court has held as follows : _“24...........In exceptional cases where there are compelling circumstances and the judgment under appeal is_ 9 Crl.L.P.No.253 of 2017 _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.”_ 9. Further, in the case **Pudhu Raja and another v. State** reported in **[(2012) 11 SCC 196] = [(2013) 1 SCC (Cri.) 430]** , the Apex Court has held that, _“The appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s order of acquittal bolsters the presumption of innocence.”_ Even if an appeal is entertained in this case, there is not much reasonable scope for reversing the impugned judgment of acquittal. Therefore, this Court is not inclined to grant leave in this petition and so, the petition seeking special leave of this Court stands dismissed. Sd/- ALEXANDER THOMAS JUDGE sd // True Copy // P.A. to Judge