IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
Crl.L.P..No. 78 of 2013 -----------------------{AGAINST THE ORDER/JUDGMENT IN CC.822/2010 of J.M.F.C.-II,PALAKKAD DATED 29.7.2011}
PETITIONER/COMPLAINANT: ----------------------MUTHOOT LEASING AND FINANCE LIMITED, NOW RENAMED AS MUTHOOT VEHICLE AND ASSETS FINANCE LTD. KURIAN TOWERS, OPPOSITE SARITHA THEATRE, BANERJI ROAD ERNAKULAM (REPRESENTED BY ITS POWER OR ATTORNEY HOLDER BABY SUJATHA W/O. JAISURAJ, SAISURAJ, CUSTOMS COLONY HOUSE NO.25, POONTHIURA.P.O, THRIPUNITHURA) BY ADV. SRI.S.NIDHEESH RESPONDENTS/ACCUSED AND STATE: ------------------------------
1. A.S. VELUSWAMY KURUKKAL 44/08, SIVASUBRAMANYAN, 24/65 SIVAN KOIL STREET, NURANI, PALAKKAD, PIN 678004. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN 682031. R1 BY ADV. SRI.S.EASWARAN R1 BY ADV. SRI.P.MURALEEDHARAN (IRIMPANAM) R1 BY ADV. SRI.M.A.AUGUSTINE R2 BY PUBLIC PROSECUTOR SRI.T.RAMPRASAD UNNI.
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J.**
## **---------------------------------------Crl.L.P.No. 78 of 2013**
**---------------------------------------Dated this the 7[th] day of February, 2013**
## **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, which 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 entered into a hypothecation agreement with the complainant connected with the purchase of Toyota Innova car on 21.9.2006 and applied for a loan of `7,32,770/-, but a total sum of `6,59,000/- was sanctioned on
26.9.2006 and the accused availed of the said finance assistance on 11.10.2006 and as per the agreement, the entire amount has to be repaid in sixty equal monthly instalments. But the accused defaulted
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in paying the instalments and when the complainant informed the accused and demanded the balance amount, the accused executed and issued Ext.P2 cheque dated 23.1.2008 for an amount of `3,60,210/which when presented for encashment dishonoured for want of sufficient fund in the account of the accused and the accused has failed to pay the amount covered by the dishonoured cheque in spite of the 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 P10. By filing a separate statement under Section 313 of the Cr.P.C., the defence advanced by the accused is that the complainant obtained the signed blank cheque leaf from the accused at the time of taking loan and the complainant misused one of such blank cheques, by forging the amount and other entries, for the purpose of filing the present case and Ext.P2 is not supported by any consideration. The trial court proceeded to consider
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the case in the light of the above rival pleadings and evidence. The trial court finally found that the complainant has failed to prove the consideration aspect of Ext.P2 cheque and accordingly, the accused is acquitted. To challenge the above finding and order of acquittal, the petitioner proposes to file an appeal for which leave of this Court is sought for.
3. I have heard Sri.S.Nidheesh, learned counsel for the petitioner and Advocate Sri.S.Easwaran, learned counsel for the first respondent and I have also perused the judgment of the trial court.
4. Learned counsel for the petitioner vehemently submitted that the transaction is admitted by the accused and the accused has also admitted his signature in Ext.P2 cheque and therefore, the trial court ought to have extended the statutory presumption under Section 139 of the N.I.Act in favour of the complainant. But, the learned Magistrate, based upon the decision in **Sudh Beevi** v. **State of Kerala** [2004(2) KLT 746], went wrong in holding that the complainant has
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failed to prove the consideration. On the other hand, the learned counsel for the respondents submitted that the complainant in the present case miserably failed to prove the liability of the accused to pay such an amount covered by Ext.P2 cheque and the execution of the cheque is also not proved. It is also the contention of counsel for the respondents that the accused has already surrendered the vehicle in question, which was subsequently sold for an amount of `4,75,000/-, still the accused was not given credit of that amount connected with the transaction. Thus, according to the counsel, the amount shown in Ext.P2 is an inflated one and the accused is not indebted to the complainant to such a huge amount. Thus, according to the learned counsel, the trial court is correct in its finding and therefore, there is no scope for any interference.
5. I have carefully considered the arguments advanced by counsel for the petitioner as well as the respondent. I have again perused the judgment of the trial court with reference to the
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contentions of the parties.
6. The specific case of the complainant is that the accused on demand volunteered to execute Ext.P2 cheque since the accused was informed about his liability connected with the hypothecation agreement, but absolutely no evidence is adduced from the side of the complainant to substantiate the above claim of the complainant. In the present case, it is relevant to note that the specific case of the defence is to the effect that at the time of availing the vehicle loan, the complainant has obtained blank signed cheque leaves from the accused and Ext.P2 is one of such blank cheque leaves misused in the present case. In the light of the evidence involved in the case, the above contention of the accused appears to be correct and probable. In paragraph 27 of the judgment, the learned Magistrate has found that Ext.P2 cheque bears cheque No.916331. The two EMI cheques, which were encashed by the complainant, bear cheque Nos.91633 and 916334. So, after considering the version of the complainant, the
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learned Magistrate has observed that no man of ordinary prudence would receive cheque leaves of ascending number EMI cheques, after leaving the cheques bearing descending numbers with the debtor. Therefore, the learned Magistrate concluded that the conduct of the complainant in this regard is highly doubtful and beyond the comprehension of an ordinary prudent man. The trial court further found that the abnormal conduct on the part of the complainant positively probablise the contention of the accused to the effect that cheque No.916331 had already been handed over in its signed blank from at the time of handing over the cheque Nos.916333 and 916334. So, the learned Magistrate resultantly held that Ext.P2 cheque was an EMI cheque, as contended by the learned defence counsel. If that be so, according to me, the learned Magistrate is perfectly justified in his finding that the complainant is not permitted to present Ext.P2 cheque, after the repossession of the vehicle and to launch the prosecution on the ground of dishonour of the cheque. The complainant has also not
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produced documentary evidence to prove the liability of the accused after giving credit to the amount of sale proceeds of the vehicle, which was surrendered by the accused. Thus, going by the judgment of the trail court, it appears to me that the finding of the court below is supported by the materials and evidence on record and therefore, it cannot be said that those findings are perverse or illegal. If that be so, in appeal, this Court will not be justified in interfering with the order of acquittal particularly, when the petitioner fails to show that the findings of the court below are perverse or illegal. Therefore, even if an appeal is entertained, there is not even a remote scope to interfere with the findings of the court below.
In the result, this Criminal Appeal is devoid of any merit and accordingly, the same is dismissed.
sd/-
MBS/
**V.K.MOHANAN,** Judge
- _true copy-_
_P.S.TO JUDGE_
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V.K.MOHANAN, J.
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CRL.L.P.No. OF 20
O R D E R
Dated:2. ..2011
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