M/S Sree Gokulam Chit & Finance Co. Pvt. Ltd. v Job P.X. & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934 Crl.L.P..No. 466 of 2012 ------------------------[AGAINST JUDGMENT DTD.16.12.2011 IN CC.343/2009 of THE JUDICAIL FIRST CLASS MAGISTRATE COURT -I, CHERTHALA] PETITIONER/COMPLAINANT: ---------------------- M/S.SREE GOKULAM CHIT & FINANCE CO. PVT. LTD. HAVING ITS REG.OFFICE AT SREEGOKULAM TOWERS, NO.66 ARCOT ROAD, CHENNAI-24 HAVING ITS BRANCH AT CHERTHALA AT GANDHI BAZAAR SHOPPING COMPLEX, CANAL ROAD, CHERTHALA REP. BY ITS ASST.BUSINESS MANAGER & POWEROF ATTORNEY HOLDER MOHANAN S/O.KUMARAN, KUNNUKULANGARA VEEDU, S.N.PURAM.P.O., KANJIKUZHI, CHERTHALA. BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR RESPONDENTS/ACCUSED & STATE : ----------------------------- 1. JOB P.X. S/O.XAVIER, PARANGOTTUSHARIL, THUMPOLY P.O., ALAPPUZHA PIN CODE - 688 008. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 11- 09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 466 of 2012** **---------------------------------------Dated this the 11[th] day of September, 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 his complaint, acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that the accused is a surety for his son, who was having chitty transaction with the complainant/company and when the subscriber failed to pay the chitty amount, the accused, as a surety, on demand issued Ext.P1 cheque, which when presented for encashment dishonoured due to insufficient fund in the account of the accused and it is the further case of the complainant that the accused has not repaid the amount in spite of the ## **CRL.L.P.NO.466 of 2012** ## **:-2-:** statutory notice served on him and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P7 documents and no evidence either oral or documentary was produced from the side of the defence. The trial court, after considering the entire evidence and materials, has found that one of the essential requirements for the prosecution for the offence under Section 138 of the N.I.Act is that the cheque should be executed and issued by the accused for the discharge of a legally enforceable debt or liability and in the present case, the complainant has failed to prove the execution of the cheque by the accused. Therefore, the trial court has held that even if the other statutory requirements like cause of action, legal notice and filing of the complaint etc. are proved by the complainant, he failed to prove the essential statutory requirements of proving the execution of the cheque by the accused and the existence of a legally recoverable debt ## **CRL.L.P.NO.466 of 2012** ## **:-3-:** for the discharge of which Ext.P1 is alleged to be executed and accordingly, the accused 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 prays for leave of this Court. 3. I have heard Sri.K.S.Babu, learned counsel for the petitioner and I have perused the judgment impugned. 4. The learned counsel, after read over the proof affidavit and the averment in the complaint, submitted that the complainant has proved the transaction and execution of the cheque and therefore, the finding of the court below is incorrect and liable to be set aside and the accused is liable to be punished. 5. In the light of the contentions advanced by the counsel for the petitioner, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave as prayed for, otherwise whether the petitioner is succeeded in making out a prima ## **CRL.L.P.NO.466 of 2012** ## **:-4-:** facie case in support of his challenge against the finding of the court below and the order of acquittal recorded in favour of the accused. Admittedly, the liability of the accused arose as a surety for his son, who was allegedly having chitty transaction with the complainant. The trial court has specifically found that there is no documentary evidence to show that the son of the accused was a subscriber to the chitty conducted by the complainant or that the accused was a surety of any contract or guarantee. In the absence of any such evidence, the trial court has found that there is nothing to show that the accused had the liability of a surety co-extensive with the principal debtor who is his son to pay the defaulted future instalments of a chitty transaction, other than the sole, uncorroborated oral testimony of the complainant. The trial court has also found that in the present case, the details of the chitty transaction, the outstanding balance, the contract of guarantee signed by the accused etc. are all supposed to be available with the complainant/company and they failed to produce the same before the ## **CRL.L.P.NO.466 of 2012** ## **:-5-:** court. Against the above, the learned counsel for the petitioner submitted that an opportunity may be given to the petitioner to produce those documents before this Court by virtue of Section 391 of the Cr.P.C. I am unable to sustain the above contention. In the present case, the question is whether the petitioner is entitled to a leave. The question of producing documents raises only when the appeal is entertained. 6. It is also relevant to note that as a matter of course, no appellant can produce document in the appellate court unless the appellate court is convinced. In the present case, as rightly observed by the learned Magistrate, all documents are with the complainant, but the same were not produced. Therefore, the present prayer cannot be considered at this stage. It is also relevant to note that the present case of the complainant is that when the subscriber failed to pay the monthly instalments, the accused, being a surety, was demanded to pay off the amount. No document other than the interested version of ## **CRL.L.P.NO.466 of 2012** ## **:-6-:** PW1 is produced to substantiate the above contention that the accused was formally demanded to pay the defaulted instalment. So, regarding the first stage towards the discharge of the liability or the execution of the cheque, there is absolutely no evidence. It is the further contention of the learned counsel that the complainant has proved the execution of the cheque. No evidence is adduced before the court with respect to the execution of the cheque except the mere claim that PW1 was present during the transaction. The learned Magistrate has observed that PW1 has not deposed that the cheque was handed over in his presence. If that be so, even if it is stated either in the complaint or in the proof affidavit to the effect that the signature of the accused is contained in the cheque, is not sufficient to hold that the accused executed and issued the cheque. Thus, it can be seen that to prove the transaction fixing liability upon the accused and to prove the execution and issuance of the cheque, absolutely there is no evidence and the petitioner has also failed to show that the trial court has failed ## **CRL.L.P.NO.466 of 2012** ## **:-7-:** to consider any evidence or materials which are available in favour of the complainant in support of the plea for execution and issuance of cheque. If that be so, according to me, even if an appeal is entertained, there is not even a scope to interfere with the order of acquittal. 7. 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:- “ _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.”_ Thus, on examination of the facts and circumstances involved in the present case, and on the basis of the evidence and materials referred to by the learned judge in the impugned judgment, it can be seen that the petitioner has miserably failed to show that the judgment sought to be ## **CRL.L.P.NO.466 of 2012** ## **:-8-:** impugned is a perverse one. Therefore, there is no scope to interfere with the order of acquittal recorded by the trial court, even if an appeal is entertained. Against the above finding and the order of acquittal, the appellant has miserably failed to make out any substantial or compelling reason so as to interfere with the order of acquittal recorded by the learned Magistrate. Hence, there is no merit in this petition and the same is dismissed accordingly. MBS/ V.K.MOHANAN, Judge ## **CRL.L.P.NO.466 of 2012** **:-9-:** V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R ## **CRL.L.P.NO.466 of 2012** ## **:-10-:** Dated:2. ..2011