Kumar A. v. The State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 11TH DAY OF OCTOBER 2012/19TH ASWINA 1934 Crl.L.P..No. 572 of 2012 ---------------------- ST.120/2011 of J.M.F.C.-VI, NEYYATTINKARA PETITIONER/COMPLAINANT:-: ------------------------ KUMAR. A., AGED 32 YEARS, S/O.APPU, VENGANINNA VADAKKARIKU PUTHEN VEEDU, KAIVANVILA, NELLIMMOODU P.O. BY ADVS.SRI.R.T.PRADEEP SRI.P.BIJIMON RESPONDENT/STATE/ACCUSED:-: ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ## 2. VIJAYA KUMAR, S/O.PONNAYYAN NADAR, KUZHIPPARACHAL VEEDU, NEELLIMMOODU P.O., KANJIRAMKULAM. BY ADV. PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.572 of 2012 ---------------------------------------------Dated this the 11[th] day of October, 2012** ## **ORDER** 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 leave 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. The case of the complainant is that the accused issued a cheque dated 24/11/2009 to the complainant for an amount of `1,50,000/- and the said cheque when presented for encashment dishonoured as there was no sufficient fund in the account of the accused and the accused has not repaid the amount though a statutory notice was served on him. Therefore, according to the Crl.L.P.No.572/2012 : 2 : complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case Pws.1 and 2 were examined and produced Exts.P1 to P4 documents. No evidence either oral or documentary was produced before the court below. The learned Magistrate after considering the entire evidence and materials came into a conclusion that the complainant has not succeeded in proving his case and consequently the accused is acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal that is sought to be challenged in appeal for which leave of this Court is sought for in this petition. 3. I have heard Sri.R.T.Pradeep, learned counsel for the petitioner and I have also perused the judgment of the trial court. 4. The learned counsel for the petitioner vehemently submitted that the learned Magistrate has found against the complainant only for the reason that the date of borrowal and issuance of the cheque were not mentioned in the complaint and in the proof affidavit, Crl.L.P.No.572/2012 : 3 : which according to the learned Magistrate, is incorrect and illegal, since, during the cross-examination of PW.1, had stated the exact date of passing of consideration as on 01/10/2009. It is also the contention of the learned counsel that, though the defence has taken a contention to the effect that Ext.P1 cheque was given to one Sathi which reached in the hands of the complainant, the said facts are not proved by the defence and the accused was not even prepared to mounted to the box and no evidence is given to that effect. The learned counsel further pointed out that only because of the complainant had admitted that he knows about the said Sathi, the learned Magistrate went wrong in holding that the accused has probabilised his case. Therefore, the counsel submits that the findings of the court below and order of acquittal are illegal and liable to be interfered with, if an appeal is entertained and the accused is liable to be convicted and therefore the petitioner is entitled to get leave as sought for. Crl.L.P.No.572/2012 : 4 : 5. I have carefully considered the arguments advanced by the learned counsel for the petitioner. In the light of the findings of the court below based upon the evidence and materials referred to in the judgment sought to be impugned and in the light of the contentions of the learned counsel, the question that arises for consideration is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment sought to be impugned and the findings therein. The Hon'ble Supreme Court in the decision reported in **Kumar Exports** vs. **Sharma Carpets** [2009(1)KLT 197 (SC)] paragraph 11 of the judgment, has held that the presumption under Section 139 of the N.I. Act available in favour of the complainant or the holder of the cheque only when the execution of the cheque is either admitted or proved. On examination of the facts and circumstances involved in the case, in the light of the above dictum of the Apex Court, it can be seen that the complainant in the present case has miserably failed to prove the execution of Ext.P1 cheque. Crl.L.P.No.572/2012 : 5 : The trial court has specifically found that neither in the complaint nor in the proof affidavit PW.1 has stated the transaction with the requisite data including the transfer of the consideration and also the issuance of the cheque. According to me, in a prosecution for the offence under Section 138 of the N.I. Act, a specific pleading regarding the transaction which led to the issuance of the cheque and also the execution of the same have to be specifically pleaded and proved. In the present case, as rightly pointed out by the learned counsel for the petitioner, he had mentioned the date of passing of consideration as on 01/10/2009, only during the course of his crossexamination. The date given during the crossexamination, according to me, is not sufficient to hold that PW.1 being the complainant has discharged his initial burden so as to avail the benefit of Section 139 of N.I. Act. The learned Magistrate has already observed that an ordinary prudent man could not believe that a person who has only a limited relation, would pay `1,50,000/- to the accused without obtaining any security Crl.L.P.No.572/2012 : 6 : for the said amount. In the present case admittedly both the complainant and the accused are tailors and a sum of `1,50,000/- comparatively is a huge amount for both PW.1 and the accused. As rightly found by the learned Magistrate, the available evidence and materials are not sufficient to hold that the friendship between the complainant and the accused are so intimate as to give a substantially huge amount to the accused without any security or any due. It is also relevant to note that if there was any such transaction, the same should have been within the knowledge of the complainant and naturally the same should have been found a place in the complaint as well as in the proof affidavit. No explanation is forthcoming for not mentioning those datas either in the complaint or in the proof affidavit. In this case it is pertinent to note that the accused has disputed the execution and issuance of Ext.P1 cheque in favour of the complainant and also disputed the transaction. Therefore, it was incumbent upon the complainant to make appropriate pleading in the complaint and to Crl.L.P.No.572/2012 : 7 : adduce evidence to prove the transaction and execution of cheque as claimed by him. But absolutely there is no convincing and satisfactory evidence. Therefore, the execution is not proved. If execution is not proved, the complainant is not entitled to get presumption under Section 139 of the N.I. Act especially when the accused disputed the transaction. 6. In the present case the accused has made out probable case as to how Ext.P1 cheque reached in the hands of the complainant. According to him he had transaction with one Sathi who was running a tailoring Centre as Macho Tailors and doing textile business and Ext.P1 cheque is given to her. PW.1 has also admitted during the cross-examination about his dealings with said Sathi and his acquaintance with that lady. The learned Magistrate who had occasion to watch the demeanour of PW.1 and the parties concerned has observed that the admission of PW.1 that he has transaction with Sathi who conducted the Macho Tailors brought out the preponderance of probability in the defence of the Crl.L.P.No.572/2012 : 8 : accused. According to me the above observation is correct and relevant, when the complainant has miserably failed to furnish evidence regarding the passing of consideration and execution and issuance of the cheque and especially when pleadings in this respect are absent. Thus it can be seen that the finding of the court below is supported by the available evidence and materials on record and therefore it cannot be said that the same are perverse or illegal. 7. 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 that, “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 Crl.L.P.No.572/2012 : 9 : involved in the present case, in the light of the dictum laid down by the Apex Court in the decision cited supra, I find that no interference is possible, even in case an appeal is entertained. Against the above finding and the order of acquittal no substantial reason is made out to reverse the order of acquittal. Therefore, the petitioner has miserably failed to make out a case to grant leave under Section 378(4) of Cr.P.C. and accordingly, this Criminal Leave Petition is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge