M/S Sree Gokulam Chit & Finance Co. (P) Ltd. v. Pradeep Chandran and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 5TH DAY OF OCTOBER 2012/13TH ASWINA 1934 Crl.L.P..No. 465 of 2012 ------------------------[AGAINST THE JUDGMENT DTD.13.12.2011 IN ST.197/2010 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOTTAYAM] PETITIONER/COMPLAINANT: ----------------------- M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD. WITH IT'S CENTRAL OFFICE AT NO.66, ARCOT ROAD, CHENNAI - 600 024 AND HAVING ITS DIVISIONAL OFFICE AT PRAKKATTU BUILDING, 1ST FLOOR, CENTRAL JUNCTION, KOTTAYAM-1, REPESENTED BY ITS POWER OF ATTRONEY HOLDER MR.K.N.REJEESH. BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR RESPONDENTS/ACCUSED AND STATE: ------------------------------ 1. PRADEEP CHANDRAN, S/O.PREMACHANDRAN, ERATHUKUNNEL HOUSE, THIDANADU.P.O., PALA, PIN CODE - 686 123. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 465 of 2012** **----------------------------------------** Dated this the 5[th] day of October, 2012 ## **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 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 its complaint, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant, which engaged in the business of conducting chitties, is that the accused had joined a chitty having a sala of Rs.l lakh which commenced from 14.10.2005 and terminated on 14.5.2007 and the accused, as a subscriber bid the above said chit and received the prize amount on 30.3.2006, but he failed to pay the chitty instalments and as on 6.11.2009, an amount of `70,938/- was due from the accused towards the chitty arrears and thus, towards the CRL.L.P.NO.465 of 2012 **==> picture [21 x 9] intentionally omitted <==** discharge of the said arrears, the accused issued Ext.P7 cheque dated 6.11.2009, which when presented for encashment, dishonoured for want of sufficient fund and the accused has not paid the amount covered by the cheque in spite of statutory notice served on him and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. 3. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Ext.P1 to P13 were marked. No evidence either oral or documentary was produced from the side of the defence. After an elaborate consideration, the learned Magistrate came to a conclusion that the complainant has not proved the due execution of Ext.P7 cheque by the accused and also found that the evidence given by the complainant is insufficient to show the exact balance amount, outstanding from the accused as on 6.11.2009. On the basis of the above finding, the trial court has held that the complainant has not succeeded in proving an offence under Section CRL.L.P.NO.465 of 2012 :-3-: 138 of the N.I.Act and accordingly, the accused is found not guilty and he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the petitioner seeks leave of this Court. 4. I have heard Smt.N.Sudha, learned counsel for the petitoner. I have also gone through the judgment which is sought to be impugned. 5. Learned counsel for the petitioner vehemently submitted that Exts. P2 to P6 and P13 documents show the liability due to the accused as on the date of issuance of Ext.P7 cheque. But, the learned Magistrate failed to consider the above documentary evidence and came into an erroneous conclusion that the evidence given by the complainant is insufficient to show the outstanding balance. It is also the contention of the learned counsel that the accused has admitted the transaction and also the signature in Ext.P7 cheque and therefore, the learned Magistrate ought to have accepted the case of the accused, CRL.L.P.NO.465 of 2012 **==> picture [21 x 9] intentionally omitted <==** especially when the accused has no claim that he had cleared the entire liability. Therefore, the counsel submits that in case an appeal is entertained, there is every possibility for interfering with the findings of the court below and the order of acquittal. 6. I have carefully considered the arguments advanced by learned counsel for the petitioner. 7. In the light of the arguments advanced by learned counsel for the petitioner and in the light of the findings of the court below, which are supported by the evidence and materials, which are referred to in the above judgment, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment of the trial court. 8. Admittedly, the chitty commenced on 14.10.2005 which was terminated on 14.5.2007 and the accused received the prize amount on 30.3.2006. According to the complainant, as on 6.11.2009, an amount of Rs.70,938/- is due and towards the discharge of the said liability, CRL.L.P.NO.465 of 2012 :-5-: the accused issued Ext.P7 cheque dated 6.11.2009. Whereas the specific case taken by the accused is that he has given blank signed cheque and blank papers at the time of receipt of the chitty amount and according to him, though he had not paid off the entire amount, he is not liable to pay the cheque amount, as claimed by the complainant. Though in the schedule to the judgment, it is stated as no defence witness is examined, in paragraph 9 of the judgment, it is stated that the accused himself was got examined as DW1. In paragraph 11 of the judgment, the learned Magistrate has specifically found that the execution of the cheque is not proved and the said conclusion was arrived by the learned Magistrate, after considering the evidence of PW1. According to the learned Magistrate, PW1 has deposed that the accused has given a cheque by making entries therein. On physical verification of Ext.P1 cheque, the learned Magistrate has found that the ink used for making the signature and the entries are of two different inks. PW1 has no claim or he is CRL.L.P.NO.465 of 2012 :-6-: unaware of the person who made entries in Ext.P1 cheque. The learned Magistrate has also found that neither in the chief examination nor in the complaint, the complainant has not stated regarding the due execution of Ext.P7 cheque by the accused. In the absence of any such positive evidence and because of the discrepancy pointed out in paragraph 11, the learned Magistrate came to a conclusion that absolutely there is no evidence available to prove the execution of Ext.P7 cheque by the accused. According to me, the above finding of the court below is perfectly correct and valid, especially when the petitioner has no case that any other evidence is available on record to prove the execution of the cheque and the has been overlooked by the Magistrate. Therefore, the above findings of the court below are absolutely correct and it cannot be said that the same is a perverse one and such finding cuts the very root of the prosecution case. 9. In paragraph 12 of the impugned judgment, the trial court has considered the documentary evidence produced by the complainant to CRL.L.P.NO.465 of 2012 :-7-: prove the liability of the accused for issuance of Ext.P7 cheque. The main documents relied on by the complainant to prove the liability of the accused, are Exts.P5 and P13 documents. The learned Magistrate has found that PW1 has admitted that the amount paid by the accused and received by him would not find a place in Ext.P5 document and the interest rate is also not mentioned in Ext.P5. The learned Magistrate has specifically found that the amount due as on 6.11.2009 from the accused would not find a place in Ext.P13 statement. On verification of Ext.P5, the learned Magistrate is of the opinion that the same contained only certain entries. According to the learned Magistrate, the termination balance, interest up to 14.9.2009, collection after termination and the balance outstanding are only available in Ext.P5. Therefore, according to the Magistrate, Ext.P5 cannot be treated as a true extract of the accounts of the accused with the complainant. The learned Magistrate is also not prepared to act upon the evidence of PW2 since according to PW2, the amount was CRL.L.P.NO.465 of 2012 **==> picture [21 x 9] intentionally omitted <==** collected from the accused at the branch office of the complainant at Pala. After considering the evidence of PW2 and particularly the documentary evidence, the trial court has found that the amount outstanding from the accused as on 6.11.2009 cannot be exactly seen either from Ext.P13 or from Ext.P5. The learned magistrate has also found that the above lapse on the part of the complainant is very relevant and material, especially when the accused, who got examined as DW1, has a case that he is not liable to pay the cheque amount and the balance amount is only `30,000/-. It is under the above circumstances, the learned Magistrate came to a conclusion that the evidence given by the complainant is insufficient to show that the balance outstanding from the accused as on 6.11.2009 is the cheque amount. Thus, going by the reasoning given by the learned Magistrate, it appears that the complainant has miserably failed to prove the essential ingredients of Section 138 of the N.I.Act with respect to the execution of Ext.P7 cheque and also the liability alleged CRL.L.P.NO.465 of 2012 :-9-: by the complainant which is due from the accused. Therefore, I am of the view that the learned Magistrate is absolutely right in his conclusion on the above point, that too by assigning cogent and satisfactory reasoning which are supported by the evidence and materials on record. Therefore, it cannot be said that the finding of the learned Magistrate or the judgment of the trial court is perverse or illegal. 10. In a recent decision of the Apex Court reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The Apex Court has held:- “ _In cases where there are exceptional 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.”_ CRL.L.P.NO.465 of 2012 **==> picture [27 x 9] intentionally omitted <==** Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, I find no scope for any interference, even if an appeal is entertained against the above finding. There is no substantial or compelling reason to interfere with the order of acquittal recorded by the learned Magistrate and the petitioner has miserably failed to establish that the judgment is a perverse one. Therefore, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. Accordingly, this Criminal Leave Petition is dismissed. **V.K.MOHANAN, Judge** MBS/ CRL.L.P.NO.465 of 2012 :-11-: **V.K.MOHANAN, J** . CRL.L.P.No. OF 20 CRL.L.P.NO.465 of 2012 :-12-: **==> picture [87 x 18] intentionally omitted <==** Dated:2. ..2011