## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN**
**TUESDAY, THE 18TH DAY OF SEPTEMBER 2012/27TH BHADRA 1934**
**Crl.L.P..No. 545 of 2012 ()**
**---------------------------**
**AGAINST THE JUDGMENT IN ST.5190/2010 of J.M.F.C.IV (MOBILE),TVM., DTD.28.2.2012**
## **ACCUSED(S)/COMPLAINANT:-:**
**------------------------**
**M/S. MULAMOOTTIL CONSUMER CREDITS LTD.,, AGED 45 YEARS REGISTERED OFFICE AT TC9/1419(1), TEMPLE ROAD SASTHAMANGALAM, THIRUVANANTHAPURAM**
**RESPENTED BY ITS AUTHORISED SIGNATORY POWER OF ATTORNEY HOLDER SMT.BINU KURIAN W/O.KURIAN JOHN, 'BIJI VILLA', THAIKKATTUKARA P.O. ALUVA - 683 106.**
**BY ADV. SRI.BIJU HARIHARAN**
## **COMPLAINANT(S)/ACCUSED AND STATE:-:**
**-----------------------------------**
**1. DILI S.P., W/O.SONI, RESIDING AT SOORYA VILASOM, EDATHARA P.O. SUNDARIMUKKU, KADAKKAL.**
**2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.**
**BY SMT.LALIZA T.Y., PUBLIC PROSECUTOR**
**THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**ami/**
## **V.K.MOHANAN, J.**
## **------------------------------Crl.L.P.No.545 of 2012**
## **------------------------------Dated this the 18[th] day of September, 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 28.2.2012 in S.T.No.5190 of 2010 of the court of the Judicial First Class Magistrate-IV (Mobile Court), Thiruvananthapuram, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.
2. Heard Sri.Biju Hariharan, learned counsel for the petitioner and I have perused the judgment which sought to be impugned.
3. Learned counsel for the petitioner vehemently submitted that the transaction, under which Ext.P1 cheque was issued, is admitted by the accused and therefore the findings of the court below are factually and legally
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incorrect and unsustainable. It is also the submission of the learned counsel that no reply is given by the accused against the statutory notice served on her. But the learned Magistrate, without proper consideration of the issue, came into a wrong conclusion that Ext.P1 was not issued by the accused towards the discharge of a legally enforceable debt. Therefore, the counsel submits that in case an appeal is entertained, there is every possibility to interfere with the findings of the court below and the order of acquittal.
4. I have carefully considered the submissions of the learned counsel for the petitioner.
5. In the light of the arguments advanced by the learned counsel and the facts and circumstances involved in the case and the evidence referred to by the learned Magistrate in the judgment sought to be impugned, the question to be considered is whether the petitioner is entitled to get the leave as prayed for or whether the petitioner has succeeded in making out a prima facie case
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## **Crl.L.P.No.545 of 2012**
in support of the challenge against the judgment sought to be impugned. Admittedly, the accused is not a loanee who availed loan from the complainant/appellant. The learned Magistrate has specifically observed that PW1 deposed that the accused does not have any money transaction with the complainant company. The learned Magistrate has also observed that, later PW1 deposed that the accused was a guarantor and the principal debtor was her husband. It is true that the complainant has produced Ext.P1 cheque from its possession and the said cheque pertains to the account maintained by the accused. But as observed by the learned Magistrate, there is no specific averment in the complaint as to how the liability created upon the accused so as to issue Ext.P1 cheque. The learned Magistrate is of the opinion that the material facts that the accused is a guarantor and the principal debtor is her husband, are not averred in the complaint. The learned Magistrate has also found that in the complaint, the complainant does not have
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any case that the accused issued Ext.P1 cheque as a security to the transaction. On the other hand, it s relevant to note that the specific case of the accused is that the cheque in dispute was issued as a security and the entries in Ext.P1 were never made by the accused.
6. Therefore, the further issue that emerges for consideration is whether the complainant has succeeded in establishing that the accused after due execution of the cheque, issued the same towards the discharge of any liability that due to the complainant from the accused. As I indicated earlier, there is no specific averment in the complaint to the effect that the accused has executed and issued Ext.P1 cheque on her capacity as a surety or guarantor, as the case may be, undertaking the liability of her husband, the loanee. It is also relevant to note that no material or evidence is produced to show that when the principal debtor, namely the husband of the accused, defaulted in making the payment, and when the guarantor
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was demanded to pay off the amount or the accused was made aware of the amount in default and when she was demanded to pay such amount. According to me, the absence of those materials and evidence will probabilise the case of the accused that Ext.P1 cheque was given as security. The trial court has specifically found that the absence of averments with respect to the transaction of the accused with the complainant company and the non examination of Branch Manager, who is a party in Ext.P8 which leads to the issuance of Ext.P1 cheque are fatal to the complainant's case. Accordingly, the learned Magistrate has held that it is probable that Ext.P1 was issued as a security and the case set up by the complainant that the accused owed `36,700/- on 25.3.2010 and the same was issued as a discharge of the liability is improbable. Thus, going by the reasoning assigned by the learned Magistrate in support of his findings that too based upon the evidence and materials referred to therein, it cannot be said that the
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above findings of the court below 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 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 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
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judgment in question.
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 its 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
