M.SIVANANDAN LALITHA NIVAS v. SURESH and STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934 Crl.L.P..No. 98 of 2013 () -------------------------AGAINST THE ORDER/JUDGMENT IN ST.58/2010 of J.M.F.C. - III, KOLLAM DATED 04-09-2012 PETITIONER/COMPLAINANT: ------------------------------- M.SIVANANDAN LALITHA NIVAS, OYOOR, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENTS/ACCUSED & STATE : --------------------------------------- 1. SURESH, S/O.SREENIVASAN, KALLUPURAYIL, PARAVOOR P.O., KOLLAM, PIN-691 301 ## 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT FO KERALA, ERNAKULAM, PIN-682031. R1 BY ADV. SRI.AJAYA KUMAR. G BY PUBLIC PROSECUTOR SMT.V.H.JASMINE THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## V.K.MOHANAN, J. -----------------------Crl.L.P.No.98 of 2013 ------------------------------------Dated this the 13[th] day of February, 2013 ## 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 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 on 15.3.2004, the accused borrowed an amount of Rs.4,50,000/- from the complainant and to discharge the said debt on the same date the accused issued a post dated cheque Ext.P1 which bearing date 26.10.2006 and when the said cheque presented for encashment dishonoured as there was no sufficient fund in the account maintained by the accused. The further case of the complainant is that though a legal notice was served on the respondent informing him about dishonour of the cheque and demanding for repayment of the amount covered by the dishonoured cheque, no ## **Crl.L.P.No.98 of 2013 2** amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. During the trial of the case, the complainant himself was got examined as PW1 and produced Exts.P1 to P6 documents. From the side of the defence Dws.1 to 4 were examined and Exts.D1 to D3 were marked. The trial court after considering the entire evidence and materials on record held that the complainant has failed to prove the execution of the cheque and issuance of the same for a legally enforceable debt and consequently the accused is found not guilty and accordingly, he is acquitted under Section 255(1) Cr.P.C. It is the above finding and the order of acquittal sought to be challenged for which the petitioner seeks leave of this court. 3. I have heard Sri.B.Mohan Lal, learned counsel for the petitioner. 4. The learned counsel vehemently submitted that the trial court went wrong in accepting the case of the defence and holding that the complainant has not proved the case against the accused. The further submission of the learned counsel that the discrepancies and infirmities occurred in the deposition of the ## **Crl.L.P.No.98 of 2013 3** complainant, who was examined as PW1 has no legal consequence especially when the accused admitted the transaction including the signature on Ext.P1 cheque. It is also the submission of the learned counsel, on the strength of the decision of this Court in **Devan v. Krishna Menon (2010(2)** **KLT page 397)** , that as the execution is admitted by the accused no duty is cast upon the complainant to prove the liability and the original transaction. Therefore, the trial court went wrong in holding that the cheque in question was not issued towards discharge of the liability of the accused due to the complaint. Thus the counsel submitted that there is every chance to interfere with the findings of the Court below and the order of acquittal, in case an appeal is entertained and therefore, the petitioner is entitled to get leave as prayed for. 5. I have carefully considered the contentions advanced by the learned counsel for the petitioner and I have gone through the judgment sought to be impugned. 6. In the light of the contentions advanced by the counsel for the petitioner and in the light of the facts and circumstances involved in the case especially in view of the evidence and ## **Crl.L.P.No.98 of 2013 4** materials referred to by the learned Magistrate in the judgment sought to be impugned and his findings thereto, the question to be considered is whether the petitioner has succeeded to make out a prima facie case in support of his challenge against the findings of the Court below and the judgment in question. At the outset it is to be noted that in the complaint there is no whisper about the facts and circumstances which led to the execution and issuance of Ext.P1 cheque on 15.3.2004 at the PWD Rest house at Kollam. Though the learned counsel for the petitioner read out the proof affidavit filed by the complainant in lieu of chief examination, there is no mentioning about the acquaintance between the complainant and the accused to give such a huge amount to the accused. In this juncture it is relevant to note that as a security, for the payment of the amount, except Ext.P1 cheque no other document is obtained. If the acquaintance or friendship between the complainant and the accused was so thick, naturally no need any document towards the security. But in the present case there is no averment in the complaint or evidence on record to show that the relationship between the complainant and the accused to give such a huge amount without ## **Crl.L.P.No.98 of 2013 5** any security or document. It is also relevant to note that there is no whisper in the complaint or in the affidavit to the effect that there was a prior demand from the accused for such an amount and there was an agreement between the complainant and the accused to meet in the PWD Rest House at Kollam. It is relevant to note that to prove the transaction, except the interested version of the complainant, there is no other independent evidence. Since the complainant took a contention to the effect that the transaction was taken place in the PWD Rest House and no other independent evidence is adduced, the defence cited DW3, who is the Rest House Manager and on his examination he had deposed that there was no such practice to give room to the person without booking room for rent and without entering those relevant details in the register kept in the Rest House. He had also deposed that the complainant's name has not been entered in the register kept in the Rest House on the alleged date of transaction or any other day. Thus though the complainant has not examined the Rest House Manager to prove the transaction is correct, the defence has examined the Manager as DW3 and whose evidence shows that the case of the complainant is false. ## **Crl.L.P.No.98 of 2013 6** As I indicated earlier in the absence of any prior demand for the amount and an understanding to meet in the PWD Rest House, it is quite unbelievable that the complainant and the accused met on 15.3.2004 at the PWD Rest House on which date the complainant came with the amount and the accused came with Ext.P1 cheque and executed the same before him. So the entire claim of the complainant with respect to the transaction is shrouded with suspicion and the complainant has miserably failed to clear those doubt. 7. In paragraph 14 and 16 the learned Magistrate has elaborately considered the evidence of PW1 and pointed out the discrepancies and infirmities which goes against the prosecution allegation. Therefore, the question to be considered is whether the available evidence on record are sufficient or whether the complainant has succeeded in proving his case beyond reasonable doubt against the accused. The answer is in negative. 8. The learned counsel for the petitioner pointed out several facts to show that the defence has not succeeded in proving his case. According to me, the said question does not arise for consideration in the present case since the learned Magistrate ## **Crl.L.P.No.98 of 2013 7** never accepted the case of the defence or acted upon the version of defence in arriving his conclusion against the complainant. Thus going by the judgment of the trial court it can be seen that the learned Magistrate based upon the available materials and evidence held that the complainant has not succeeded in proving his case against the accused and Ext.P1 cheque was not issued towards the discharge of the legally enforceable debt due to the complainant. Thus the finding of the Court below according to me is based upon the evidence and materials on record and that too supported by several reasoning. Hence, it cannot be said that the findings of the Court below is perverse or illegal. In a recent decision reported in **2013(1) SCC (Cri) 430** , the Apex Court has held the Appellate Court can interfere with the order of acquittal only for exceptional cases where there are compelling circumstances and judgment in appeal found to be perverse. It is further held that the Appellate Court should bear-in-mind presumption of innocence of accused and further trial court's order of acquittal bolsters the presumption of innocence. On an examination of the facts and circumstances involved in the case, in the light of the dictum laid down by the Apex Court in the ## **Crl.L.P.No.98 of 2013 8** above decision it can be seen that no compelling or exceptional circumstances is made out so as to interfere with the findings of the Court below and the order of acquittal. Therefore, this Court will not justified while sitting in appeal interfering with the findings of the Court below and the order of acquittal unless it is shown that the judgment of the trial court or the findings are perverse or illegal. Therefore, there is no scope for any interference with the finding of the Court below even if an appeal is entertained and hence the petitioner is not entitled to get leave as prayed for. In the result, the leave petition is devoid of merit and accordingly, the same is dismissed. cms **V.K.MOHANAN, JUDGE.**