M/S Pachalam Auto Finance v. State of Kerala and Bachan Kurian

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`** **Crl.L.P..No. 558 of 2012 ()** **--------------------------AGAINST THE JUDGMENT IN CC.1148/2010 of ADDL.C.J.M.(E&O), ERNAKULAM, DTD.17.7.2012** **PETITIONER(S)/COMPLAINANT:** **----------------------** **M/S.PACHALAM AUTO FINANCE** **PACHALAM, REPRESENTED BY ITS MANAGING PARTNER JOSEPH FEDERICK K.X., S/O.XAVIER, AGED 49 YEARS KADAMATTUNGAL, VADUTHALA, KOCHI-23.** **BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA** **RESPONDENT(S)/STATE AND ACCUSED:** **---------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** ## **2. BACHAN KURIAN,** **S/O.K.V.KURIAN, KUTTIKADU HOUSE, KOTTUVADIMUKKU MANJUMMEL P.O., KOCHI-683051.** **BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.558 of 2012 ------------------------------Dated this the 3[rd] 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 17.7.2012 in C.C.No.1148 of 2010 of the court of the Addl. Chief Judicial Magistrate (EO)-Ernakulam, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant, which engaged in the business of auto financing, is that towards the partial discharge of the liability, which due to a loan availed by the accused, he had signed and issued Ext.P2 cheque for `51,241/-, in favour of the complainant which when presented for encashment dishonoured due to insufficiency 2 ## **Crl.L.P.No.558 of 2012** of funds and no amount was paid inspite of a statutory notice served on him. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P9 documents. After an elaborate consideration of the evidence and materials on record, the learned Magistrate has found that the complaint and the proof affidavit did not reveal the circumstances under which the accused had signed and issued Ext.P2 cheque for an amount of `51,241/-. According to the learned Magistrate, in the absence of material particulars related to the above aspect, it is not possible to say that execution of Ext.P2 cheque could be discerned from any circumstances brought out through the evidence adduced by the complainant. Consequently, the learned Magistrate concluded that the complainant has miserably failed to establish that the accused had executed and issued Ext.P2 cheque in discharge of a legally enforceable debt of `51,241/-. It is on 3 ## **Crl.L.P.No.558 of 2012** the basis of the above finding, the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged, for which the petitioner approached this Court to seek leave, for appeal, under section 378(1) of Cr.P.C. 3. Learned counsel on the strength of the decision reported in **Augusty Vs. Rajan {1999(1) KLT 788}** has submitted that, in the complaint, the complainant is not bound to state the details with respect to the date, place etc. of the cheque but the learned Magistrate went wrong and held that the complainant has not stated those details in the complaint and therefore according to the counsel, the above finding is liable to be set aside. It is the another contention of the learned counsel that in view of the decision of the Honourable Apex Court in **Kumar Exports Vs. Sharma Carpets {2009(1) KLT 197 (SC)}** the complainant is entitled to get presumption as envisaged under section 118(b) and 139 of the NI Act but the learned Magistrate in the present case was reluctant in extending 4 ## **Crl.L.P.No.558 of 2012** such benefit in favour of the complainant and for that reason also, the judgment of the trial court is liable to be interfered with and the findings of the court below are to be set aside and the accused is liable to be convicted. 4. I have carefully considered the submissions made by the counsel for the petitioner and I have gone through the judgment of the trial court as well as the authorities cited by the learned counsel for the petitioner. 5. The crux of the allegation in the complaint against the accused is that the accused has signed and issued a cheque dated 23.3.2010 for an amount of `51,241/-, towards the partial discharge of the liability relating to a loan availed from the complainant. Whereas the accused has disputed the execution and issuance of Ext.P2 in discharge of a liability to the tune of `51,241/- as alleged in the complaint. The specific case taken by the accused is that the complainant had obtained a signed blank cheque from him at the time when he borrowed a sum of `10,000/- on an earlier occasion and the present case has been instituted by 5 ## **Crl.L.P.No.558 of 2012** manipulating and misusing the above said cheque. In the present case, the memorandum of evidence of the complaint consists of the proof affidavit filed by PW1 in lieu of his chief examination and his deposition during the cross examination. Learned counsel has also read out to me the proof affidavit filed by PW1 and the deposition during his cross examination. In the judgment, which is sought to be impugned, the learned Magistrate has specifically noted that, apart from a casual and superficial statement in para 2 of the proof affidavit of PW1 that the accused had signed and issued cheque dated 23.3.2010 bearing no.903123 for an amount of `51,241/- drawn on ICICI bank ltd., Edappally Branch, absolutely nothing stated in the above affidavit as to whether the deponent had witnessed the execution of Ext.P2 cheque by the accused. The learned Magistrate has also found that, nor had PW1 stated in his proof affidavit that the execution of Ext.P2 cheque by the accused was in his presence or in the presence of any other persons known to him. The learned Magistrate has also referred to the 6 ## **Crl.L.P.No.558 of 2012** deposition of PW1 during the cross examination wherein he had stated that the accused had entrusted Ext.P2 cheque to a staff by name Jency working at his office. It is also the further finding of the learned Magistrate that, there also PW1 has not stated that the above staff by name Jency had seen the accused signing Ext.P2 cheque with the intention to have it encashed for the payment of the amount stated therein to the complainant. It is relevant to note that the said Jency has not been cited and examined as a witness. After considering the decision reported in **Santhi Vs. Mary Shirly (2011(3) KLT 273)** , the learned Magistrate has found that, “it is not possible to conclude on the basis of a mere averment that the accused had given the cheque to a staff of the complainant, that the execution of the above said cheque has been proved”. Thus according to the learned Magistrate, “the evidence of PW1 is totally insufficient to establish the primary requirement in a prosecution of this nature towards proving the execution of the impugned cheque by the accused”. In support of the above findings and the observation, the 7 ## **Crl.L.P.No.558 of 2012** learned Magistrate in his judgment, particularly in para 6 in page 6, has stated that the complaint and the proof affidavit are totally silent as to the date when the accused signed and issued Ext.P2 cheque. It is also observed that the place of the execution of the cheque and issuance of the same are also not stated either in the complaint or in the proof affidavit. The above reasoning and observations appear to be correct and supported by materials, especially when there is no contra material or evidence. In the decision relied on by the learned counsel and cited by her in **Kumar Exports Vs. Sharma Carpets {2009(1) KLT 197(SC)}** the Apex Court in para 10 of its judgment has categorically held that, “Applying the definition of the word 'proved' in S.3 of the Evidence Act to the provisions of Ss.118 and 139 of the Act, it becomes evident that in a trial under section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of the negotiable instrument is either proved or admitted”. 8 ## **Crl.L.P.No.558 of 2012** (emphasis supplied). In the very same para of the very same decision, the Apex court has further held that, “A presumption is not in itself evidence, but only makes prima facie case for a party for whose benefit it exists.” (emphasis supplied). 6. On examination of the facts and circumstances involved in the case, especially in the light of the evidence and materials referred to by the learned Magistrate in the judgment sought to be impugned, which facts and evidence are not disputed, and in the light of the above dictum laid down by the Apex court, it can be seen that the complainant in the present case has miserably failed to prove the execution of Ext.P2 cheque, particularly when the accused has disputed the execution of the same. If that be so, in the light of the facts and circumstances involved in the case and the evidence, which I have already referred to and as seen from the judgment sought to be impugned, it can be safely concluded that the trial court is perfectly correct and legal in its finding that the complaint and proof affidavit did not 9 ## **Crl.L.P.No.558 of 2012** reveal the circumstances under which the accused had signed and issued Ext.P2 cheque for an amount of `51,241/and the further finding that in the absence of material particulars pointing to the above aspect, it is not possible to say that the execution of Ext.P2 cheque could be discerned from any circumstances brought out from the evidence adduced by the complainant. Therefore, the above findings cannot be treated as perverse or illegal and hence no interference of this Court is warranted. 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 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 10 ## **Crl.L.P.No.558 of 2012** involved in the present case, in the light of the above dictum 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. 8. 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