Muthoot Leasing and Finance Ltd. (now renamed as Muthoot Vehicle & Asset Finance Ltd.) v. Somarajan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 1ST DAY OF AUGUST, 2012/10TH SRAVANA, 1934 Crl.L.P.No. 446 of 2012 -----------------------[AGAINST THE ORDER DTD.25.11.2010 IN CC.236/2008 of J.M.F.C., KAYAMKULAM] PETITIONER/COMPLAINANT: ----------------------- MUTHOOT LEASING AND FINANCE LTD. NOW RENAMED AS MUTHOOT VEHICLE & ASSET FINANCE LTD., KURIAN TOWERS, OPPOSITE SARITHA THEATRE BANERJI ROAD, ERNAKULAM, REP. BY ITS POWER OF ATTORNEY HOLDER BABY SUJATHA BY ADVS.SRI.C.S.MANILAL SRI.S.NIDHEESH RESPONDENTS/ACCUSED AND STATE: -----------------------------1. SOMARAJAN, AGED 56, SHALEM HOUSE, KEERIKAD, KARTHIKAPPALLY, PIN 690 508. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) BY ADV. SRI.A.R.DILEEP BY ADV. SMT.NAVA VARGHESE R2 BY PUBLIC PROSECUTOR SRI.P.M.SANEE. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01- 08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 446 of 2012** **---------------------------------------Dated this the 1[st] day of August, 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. Counsel for the petitioner submitted that the loan transaction between the complainant and the accused is governed by the provisions that contained in Ext.P6 agreement. But, the accused failed to repay the monthly instalments and when the accused is demanded to clear the liability, he issued Ext.P1 cheque towards the discharge of the liability of `1,50,964/-. Thus, according to the learned counsel, the findings of the court below are incorrect and CRL.L.P.NO.446 of 2012 :-2-: liable to be interfered with. 3. I am unable to sustain the above contention. The learned Magistrate, who had perused Ext.P7 statement of account, has concluded that Ext.P7 does not disclose, how many instalments were repaid by the accused and at which stage the accused committed the default. Against the above finding, the learned counsel for the petitioner submitted that generally, in Ext.P7 like statement, the date of default of instalment is not specifically mentioned. According to the learned counsel, the payment as and when made by the loanee will be entered in Ext.P7. The learned Magistrate has specifically found that even though PW1 has admitted that the vehicle purchased by the accused was repossessed by the complainant and sold, the sale proceeds are not even credited to the account of the accused and there is no reference with respect to the above fact in Ext.P7. It is also crystal clear that to prove the case of the complainant that the accused executed the cheque for an amount of `1,50,964/-, there is no ## CRL.L.P.NO.446 of 2012 :-3-: satisfactory evidence. No material is produced to show that the accused was aware of the amount allegedly due to the complainant and on understanding such liability, he issued Ext.P1 cheque. No demand notice or any other document is produced by the complainant to show that the accused was aware of the due amount. In this juncture, it is relevant to note that the trial court has specifically found on perusal of Ext.P1 cheque that the cheque was prepared in two different hand writings. According to the learned Magistrate, the ink used for preparing the cheque is also different and it is further found that the entries are in blue ink whereas the signature is in black ink. So, on the basis of the above datas, the learned Magistrate has concluded that those facts reveal that there is all probability for preparing the cheque in the present form after obtaining it from the accused in blank. The failure on the part of the complainant to produce any documentary evidence to show that the accused was aware of the amount mentioned in Ext.P1 cheque assumes importance ## CRL.L.P.NO.446 of 2012 :-4-: in the above context. Thus, the complainant has failed to establish the execution of Ext.P1 cheque. In the light of the above discussion and the materials, which are referred to above as seen from the judgment sought to be impugned, it can be seen that the learned Magistrate refused to accept the case of the complainant and opted to accept the case of the defence and found that it is not possible to hold that the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. Thus, the above findings and conclusions of the learned Magistrate are supported by evidence and materials on record. 4. In a recent decision of the Apex Court reported in **State** v. **of 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_ CRL.L.P.NO.446 of 2012 :-5-: _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, I find no scope for any interference, even if an appeal is entertained against the above finding and the order of acquittal and there is no substantial or compelling reason to interfere with the order of acquittal recorded by the learned Magistrate or establish that the judgment is perverse. 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. sd/- MBS/ **V.K.MOHANAN,** Judge ## CRL.L.P.NO.446 of 2012 :-6-: V.K.MOHANAN, J. CRL.L.P.NO.446 of 2012 :-7-: CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 ## CRL.L.P.NO.446 of 2012 :-8-: