IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
MONDAY, THE 1ST AUGUST, 2011 / 10TH SRAVANA, 1933
Crl.L.P..No. 519 of 2011 ------------------------------
PETITIONER/ APPELLANT:
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ANTONY PHILIPOSE @ TELSMON, VALLIYADU HOUSE, VADASSERY, CHUNGAM WARD, ALAPPUZHA.
BY ADV. SRI.ABDUL JALEEL.A
RESPONDENTS(S)/ACCUSED:
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1. RAMLA, AGED 44, W/O.ABDUL RASHEED, VAZHAPPARAMBIL (H), VADASSERY, CHUNGAM WARD, ALAPPUZHA-688 011.
2. STATE OF KERALA REPRESENTED
BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.
R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR.
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01/08/2011,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J.**
## **----------------------------------------**
## **Crl.L.P.No. 519 of 2011**
**----------------------------------------** Dated this the 1st day of August, 2011
## **O R D E R**
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 of this Court 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 the Cr.P.C.
2. Heard Sri.A.Abdul Jaleel, learned counsel appearing for the
petitioner. I have also perused the judgment of the trial court.
3. The case of the complainant is that the accused borrowed a sum of Rs.3 lakhs from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 17.7.2008. But, the same was dishonoured when presented for encashment as there was no sufficient fund in the account maintained by the accused
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and the accused has not repaid the amount in spite of the statutory notice received from the complainant and thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act.
4. With the above allegation, the complainant approached the court of Chief Judicial Magistrate, Alappuzha by filing a complaint whereupon cognizance was taken for the offence under Section 138 of the N.I.Act and instituted C.C.No.569 of 2008. During the trial, the complainant himself was examined as PW1 and one more witness was examined as PW2. Besides the above evidence, Exts.P1 to P5, which are the documents connected with the dishonour of cheque and issuance of the statutory notice, are also produced. From the side of the defence, the accused herself was examined as DW1 and one more witness DW2 was also examined. Exts.D1 to D4 documents were also produced from the side of the defence. On conclusion,the trial court found that there is no evidence to show that the complainant has
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advanced Rs.3 lakhs to the accused and therefore, the presumption under Section 139 of the N.I.Act is not available in favour of the complainant. Accordingly, the accused is acquitted under Section 255(1) of Cr.P.C.
5. The learned counsel for the petitioner vehemently submitted that the accused has not disputed the signature in Ext.P1 cheque and the transaction as such. It is pointed out by the learned counsel that even according to the accused, she is admitting the transaction with the complainant for a small sum like Rs.2000/- and Rs.10,000/- on daily payment basis. It is also pointed out by the counsel that no reply is given by the accused even though she had received Ext.P3 statutory notice and the above conduct of the accused itself is sufficient to hold that she is admitting the claim of the complainant.
6. The trial court, after considering the case of the complainant as well as the defence and on scrutiny of the evidence and materials on record, found that nowhere in the complaint, it is
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stated that the accused borrowed Rs.3 lakhs on 13.4.2008, though in the deposition of PW1, he had deposed to that effect. The trial court has also found that Pws.1 and 2 deposed that Ext.P1 was written by the eldest daughter of the accused. But, the daughter of the accused, who was examined as DW2, denied the same. It is also the finding of the learned Magistrate that the complainant is working as an Accountant in the house boat and drawing a monthly salary of only Rs.8000/- and therefore, he was not having that much financial capacity to release Rs.3 lakhs. It is, on the above materials and evidence, the trial court has found that the execution of the cheque and the passing of consideration are not proved and therefore, the accused cannot be held liable.
7. In the light of the claim of the complainant and the defence and the materials and evidence on record and particularly in the light of the findings of the court below, the question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under
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Section 255(1) of Cr.P.C.
8. In the light of the evidence and materials referred to by the learned Magistrate in his judgment, it can be seen that the defence version is more probable, especially in the light of the contemporary documents produced by the defence. As rightly pointed out by the learned Magistrate, though PW1 has deposed that the amount was paid on 13.4.2008, there is no averment in the complaint to that effect. It is true, Ext.P1 cheque bears the signature of the accused. The specific case of the defence is to the effect that though she had certain transaction with the complainant connected with minor amounts i.e., Rs.2000/- or Rs.10,000/-, the said liabilities were discharged and Ext.P1 cheque was given as a security when one of the friends of the son of the accused borrowed a sum of Rs.10,000/- from the complainant. It is the specific case of the accused that she has not executed the cheque instead of just putting the signature in the blank cheque ,which was given as a security, for the transaction between the
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complainant and friend of the son of the accused. The above version of the accused appears to be correct from the evidence of Pws.1 and 2. According to Pws.1 and 2, the particulars in the cheque were written by the eldest daughter of the accused, but when DW2 was examined, she had denied the same. When PW2 was examined, according to the learned Magistrate, he does not know the address of the accused, the name of her eldest daughter, the payment of amount and the execution of the cheque. So having considered the entire deposition of PW2, the Magistrate is of the opinion that he is a witness unworthy of credence and cannot be relied upon. It is also on evidence that the complainant is working as an Accountant in a house boat, who is drawing only a monthly salary of Rs.8000/-. The learned Magistrate also found that though the complainant undertook before the court to produce the records to show his source of income to pay such heavy amount, he did not produce any such document. It was under the above factual background, relying upon the decision of the Apex
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v. Court reported in **Kumar Exports Sharma Carpets** [2009(1) KLT 197], the trial court has found that the complainant is not entitled to get the presumption under Section 139 of the N.I.Act, since the accused has already rebutted the presumption by producing evidence from the part of the defence herself as well as by making out a case from the evidence and materials available from the side of the prosecution. Thus, the trial court, by assigning valid, proper and legal reasons, acquitted the accused and therefore, even in case an appeal is entertained, I am of the view that there is no scope for any interference with such an order of acquittal and there is no convincing or substantial reason to disturb the double presumption with respect to the innocence of the accused. Therefore, the petitioner has miserably failed to make out a case so as to grant special leave of this Court under Section 378(4) of the Cr.P.C.
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In the result, there is no merit in the Crl.L.P. and accordingly, the same is dismissed.
**V.K.MOHANAN, Judge**
MBS/
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## **V.K.MOHANAN, J** .
CRL.R.P.No. 69 OF 2001
**ORDER**
Dated:23.6.2011
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