K.P. Gopi v. Shabna C. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 Crl.L.P..No. 664 of 2011 ----------------------------(AGAINST THE JUDGMENT DTD.11.11.2010 IN STC.135/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT.-II, KANNUR) .................... PETITIONER/COMPLAINANT: ------------------------------------------ K.P.GOPI, S/O CHANDUKUTTY, GOLD STAR JEWELLERY, HAJI ROAD, PAPPINISSERY WEST, KANNUR. BY ADV. SRI.P.U.SHAILAJAN RESPONDENTS(S): ACCUSED & STATE ------------------------------------------------------ 1. SHABNA.C., D/O K.C.MOIDEEN, K.C.HOUSE, NEAR HAJI ROAD, PAPPINISSERY WEST, KANNUR, PIN-670565. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.L.P.No. 664 of 2011** ## **----------------------------------------** Dated this the 4[th] 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 acquitted the accused in his complaint under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused purchased gold ornaments for the value of `.2,89,098/- from the complainant on 22.4.2008. Thereafter, on 16.10.2008, the accused paid `.1,30,000/in cash and on that date, issued a postdated cheque bearing date as 28.11.2008, for the remaining amount of the sale consideration, i.e., `.1,59,098/-. It is the further case of the complainant that when the said cheque was presented for encashment, that was dishonoured and CRL.L.P.NO.664 of 2011 :-2-: thereafter, settlement was arrived at the intervention of mediators and thus, Ext.P1 cheque dated 2.1.2009 for an amount of `.1,85,000/was given by the accused and when the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account maintained by the accused and the accused miserably failed to pay the above cheque amount in spite of the fact that he had received the statutory notice from the complainant and therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court-II, Kannur by filing a complaint upon which cognizance was taken for the said offence and instituted STC No.135 of 2009. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6 documents, out of which Ext.P1 is the cheque in question and Exts.P2 to P6 are the documents connected with the dishonour of cheque and demand notice. The trial court, on CRL.L.P.NO.664 of 2011 :-3-: conclusion of the trial, especially in the light of the decision reported in **Bhaskaran Nair** v. **Mohanan** (2009(2) KLT 897), and on analysis of the materials placed before it found that there are suspicious circumstances surrounding the transaction alleged by the complainant. On the basis of the above finding, the trial court has further held that the complainant has failed in proving that the accused was having gold transaction with the complainant and she issued Ext.P1 cheque in the said transaction for discharging her liability to pay the value of gold ornaments. Thus, the trial court found that the accused is not guilty under Section 138 of the N.I.Act and she is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal proposed to be challenged by filing an appeal for which special leave of this Court under section 378(4) of the Cr.P.C. is sought for. 3. I have heard Sri.P.U.Shailajan, learned counsel appearing for the petitioner and I have perused the order sought to be impugned. CRL.L.P.NO.664 of 2011 :-4-: 4. The learned Magistrate, in his judgment, elaborately considered the evidence of PW1/the complainant and pointed out the contradictions and infirmities contained in the deposition and further found that the complainant has miserably failed to prove the circumstances which led to the issuance of Ext.P1 cheque. It is on the basis of the above evidence and discussion, the learned Magistrate came to the conclusion that the complainant has not proved the transaction. 5. The learned counsel for the petitioner vehemently submitted that the complainant has established his case beyond reasonable doubt and the learned Magistrate ignored the evidence adduced by him. It is also the submission of the learned counsel that the learned Magistrate miserably failed to consider the fact that the accused has refused to respond to the statutory notice and there is no denial of the issuance of the cheque and thus, according to the learned counsel, the above circumstances ought to have been taken into consideration by the CRL.L.P.NO.664 of 2011 :-5-: learned Magistrate in favour of the complainant. According to the counsel, the learned Magistrate, without proper appreciation of the evidence, found that the evidence produced by the complainant was not sufficient to attract the offence under Section 138 of the N.I.Act. 6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and the findings of the learned Magistrate. In the light of the submission made by the learned counsel for the petitioner and in view of the findings of the learned Magistrate, and on the basis of the available materials, 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 Section 255(1) of Cr.P.C. 7. According to me, the specific finding of the learned Magistrate, on analysis of the materials placed before the court, of suspicious circumstances surrounding the transaction claimed by the complainant, is correct and justified by the attendant circumstances CRL.L.P.NO.664 of 2011 :-6-: and evidence. The learned Magistrate in his judgment, observed that in the complaint and in the affidavit filed in lieu of the chief examination, the complainant has stated that he got acquaintance with the accused for several years, but he stated during the crossexamination that the accused was introduced to him by one Thottathil Kannan, who took part in the mediation, when the cheque for `.1,59,098/- was dishonoured. It is also borne out from the deposition of PW1, as discernible from the impugned judgment, that according to PW1, he parted with gold ornaments worth `.2,89,098/- on the basis of the instruction given by the husband of the accused. Therefore, the question posed by the learned Magistrate, as to why the complainant failed to obtain a cheque from the husband of the accused appears to be correct in the context. In this juncture, it is also relevant to note that no evidence is adduced from the side of the complainant for the transaction as claimed by himself and no security was obtained from the accused at the time of parting with the gold ornaments on CRL.L.P.NO.664 of 2011 :-7-: 22.4.2008. Even according to the complainant, `.1,30,000/- was paid only on 16.10.2008 after six months from the date of the transaction. Though the complainant has claimed that cash was received on 16.10.2008, there is no evidence for the same. There is also no evidence to show that a postdated cheque bearing date as 28.11.2008 for `.1,59,098/- was given on 16.10.2008. When the learned Magistrate has also observed in his judgment that regarding the dishonour of the postdated cheque for `.1,59,098/-, there is no evidence. It is also pertinent to note that according to the complainant, Ext.P1 cheque was issued at the intervention of the mediators. But, no evidence with respect to such mediation was adduced and no witness is examined. It is also relevant to note that in the judgment, the learned Magistrate has observed that though PW1 has claimed that he had made endorsement in his diary regarding the purchase of gold ornaments by the accused, the complainant has not produced such diary also. It is on the basis of the above materials and CRL.L.P.NO.664 of 2011 :-8-: evidence, the trial court concluded that the transaction claimed by the complainant is under doubt. Thus, according to me, the said conclusion and findings are fully justified and no interference is warranted, even in case an appeal is entertained against the above finding and the order of acquittal. There is no compelling or substantial reason to interfere with the order of acquittal recorded by the learned Magistrate. Therefore, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. In the result, this petition is devoid of any merit and accordingly the same is dismissed. **V.K.MOHANAN, Judge** MBS/ CRL.L.P.NO.664 of 2011 :-9-: **V.K.MOHANAN, J** . CRL.R.P.No. 69 OF 2001 CRL.L.P.NO.664 of 2011 :-10-: ## **ORDER** Dated:23.6.2011