Criminal Leave Petition No. 397 of 2012 (Crl.L.P. No. 397 of 2012) against order in ST 2865/2008, Judicial First Class Magistrate, Kolencherry

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934** **Crl.L.P..No. 397 of 2012 ()** **--------------------------AGAINST THE ORDER IN ST.2865/2008 of J.M.F.C., KOLENCHERRY, DTD.29.3.2012** **ACCUSED(S)/COMPLAINANT: ----------------------** **N.K. HARIDAS S/O.KRISHNANKUTTY, NADUKUDIPARAMBIL VEEDU EZHIPARAM KARA, MARAMPILLY P.O., MAZHUVANNOOR.** **BY ADVS.SRI.VIPIN NARAYAN SRI.P.M.RAFIQ** **COMPLAINANT(S)/ACCUSED :** **------------------------** **1. ELSAMMA PAUL KIZHAKKE KAIPILLIL THURUTHEL VEEDU, KADAKKANAD P.O. MAZHUVANNOOR-686689.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.397 of 2012 ------------------------------Dated this the 1[st] day of October, 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 29.3.2012 in S.T.No.2865 of 2008 of the court of the Judicial First Class Magistrate-Kolencherry, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused allowed the complainant to take laterite stones from the properties of the accused for a total sum of `4,60,000/- and the accused received `3,50,000/- from the complainant on 14.8.2008 and an agreement was executed on the same date. Thereafter, the complainant could not cut laterite 2 ## **Crl.L.P.No.397 of 2012** stones from the properties of the accused and therefore the accused agreed to return `3,25,000/- to the complainant for which an agreement was executed on 22.10.2008 and issued a cheque for `3,25,000/- to the complainant. It is the further case of the complainant that the said cheque when presented for encashment, dishonoured for want of sufficient fund and thereafter though a notice was sent to the accused, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and produced Exts.P1 to P11 documents. From the side of the defence, DW1 was examined and produced Ext.D1. The trial court finally found that the prosecution has failed to prove the case beyond reasonable doubt and therefore Ext.P1 cheque for `3,25,000/- was not issued by the accused to the complainant in discharge of her debt due to the complainant. Accordingly, the accused is acquitted under 3 ## **Crl.L.P.No.397 of 2012** section 255(1) of Cr.P.C. It is the above finding and order of acquittal, against which the complainant proposed to file an appeal for which he seeks leave of this Court. 3. Learned counsel for the petitioner vehemently submitted that, the trial court has not considered the agreement in favour of the complainant only for the reason that, no evidence was produced to show the payment of `1 lakh on 19.8.2008 and hence the accused is acquitted. According to the learned counsel, the other available facts and evidence would show the transaction between the complainant and the accused, especially when the defence has no claim that she had repaid the entire amount. Therefore according to the learned counsel, the findings of the court below are illegal and incorrect and liable to be interfered. 4. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have gone through the judgment of the trial court. 4 ## **Crl.L.P.No.397 of 2012** 5. From the facts and circumstances involved in the case it appears that, there was a transaction between the complainant and the accused with respect to the right to cut the laterite stone from the properties of the accused. According to the complainant, as the contract was not materialised, the accused had agreed to repay the amount of `3,25,000/-, towards which she executed Ext.P1 cheque, which was dishonoured. Whereas the case of the accused is that, no amount as figured in Ext.P1 cheque was due to the complainant, since the allegation that an amount of `1 lakh allegedly given to the accused on 19.8.2008, is baseless and it is the further case of the accused that Ext.P1 cheque was obtained under threat and coercion at the instance of one Selvaraj who is a police constable. The trial court after considering the entire evidence and materials came into the conclusion that no evidence was adduced by the complainant to show that he had handed over `1 lakh to the accused as alleged by him. In this connection, the learned 5 ## **Crl.L.P.No.397 of 2012** Magistrate has also observed that, if the complainant had actually handed over `1 lakh other than `2,50,000/-, certainly there should be a receipt for the same, issued by the accused. In this juncture it is pertinent to note that, though the complainant has claimed that a sum of `2,50,000/- was given to the accused through the account of the accused, I failed to understand why the complainant has not adopted such a course for the payment of `1 lakh, as claimed by him and if the same is true. According to me, the above failure on the part of the complainant is relevant in the light of the particular defence taken by the accused who is a lady in this case. According to her, Ext.P1 cheque was obtained under threat and coercion. The above case of the accused is substantiated through Ext.D1 report as well as through the evidence of DW1 who is none other than the District Police Chief (Rural), Ernakulam. If that be so, it can be safely concluded that the accused has not volunteered to issue Ext.P1 cheque, as claimed by the 6 ## **Crl.L.P.No.397 of 2012** complainant. Thus, the defence has succeeded in making out a very good case towards substantiating its defence. If that be so, I find not even a remote scope to interfere with the findings of the learned Magistrate. The findings of the court below are supported by the evidence and materials on record and therefore it cannot be said that such findings and the judgment of the trial court are perverse. 6. 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 as follows:- “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.” Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum 7 ## **Crl.L.P.No.397 of 2012** laid down by the Apex Court in the decision cited supra, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the presumption of innocence bolstered as per the judgment in question. 7. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge