## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934
Crl.L.P..No. 562 of 2012
---------------------------
ST.3560/2010 of J.M.F.C.,KOLENCHERRY
PETITIONER/COMPLAINANT:
---------------------------------
MUTHOOT VEHICLE & ASSET FINANCE LTD., FORMERLY KNOWN AS MUTHOOT LEASING AND FINANCE LIMITED, KURIAN TOWERS, OPPOSITE SARITHA THEATRE, BANERJI ROAD, ERNAKULAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER BABY SUJATHA, W/O.JAISURAJ, SAISURAJ, CUSTOMS COLONY, HOUSE NO.25, POONITHURA P.O., THIRPUNITHURA.
BY ADV. SRI.S.NIDHEESH
RESPONDENTS/ACCUSED AND STATE:
---------------------------------
1. P.P.SAJU, AGED 46 YEARS S/O.PAILY, POLAYIL HOUSE, PERINGOL KARA, KOLENCHERRY, PIN-682 311.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SRI.P.KESAVAN NAIR - FOR R1 R1 - BY ADV. SRI.K.G.CLEETUS BY PUBLIC PROSECUTOR -SMT.S.HYMA- FOR R2
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.562 of 2012 ---------------------------------------------Dated this the 04[th] day of October, 2012**
## **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 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 its complaint, acquitted the accused under Section 255(1) of the Cr.P.C.
2. The case of the complainant is that, the accused availed a loan from the complainant company for the purchase of a tractor with compressor and towards the discharge of the said liability, the accused issued Ext.P4 cheque for an amount of `6,59,500/-, when it was presented for encashment, bounced for want of fund in the account of the accused and the accused has not repaid the amount in spite of a statutory notice and therefore, according to the complainant, the
CRL.L.P.No.562 of 2012
:-2-:
accused has committed the offence under Section 138 of the N.I. Act. During the trial of the case PW.1 was examined on the side of the complainant and Exts.P1 to P7 were marked. The trial court after considering the entire evidence and materials on record found that there is no evidence that the accused has issued Ext.P4 cheque to the complainant in discharge of the debt of the accused due to the complainant. Accordingly, the accused is not found guilty and consequently he is acquitted under Section 255(1) of Cr.P.C. In order to challenge the above finding and order of acquittal, the petitioner prays leave of this Court for filing an appeal.
3. I have heard Adv.Sri.Nidheesh.S., learned counsel for the petitioner and I have perused the judgment of the trial court which sought to be impugned.
4. The learned counsel for the petitioner vehemently submitted that the accused has admitted the transaction and he has no case that he had repaid the loan amount and he had also not disputed the signature in Ext.P4 cheque. But the
CRL.L.P.No.562 of 2012
:-3-:
learned Magistrate failed to consider the above undisputed facts which are in favour of the complainant. It is also the submission of the learned counsel for the petitioner that, the complainant, who is the financier, is in no way responsible for the lapse on the part of the dealer who failed to provide the compressor along with the tractor for which the loan was arranged. In support of the above submission the learned counsel has pointed out that, even in the case preferred by the accused before the Consumer Redressal Forum, the complainant was not made a party and that itself shows that the default is on the part of the dealer in providing the compressor and therefore the demand for the payment of `6,59,500/- was legal and correct, which according to the learned counsel, accepted by the accused, who, in turn of such demand, issued Ext.P4 cheque. So according to the counsel, the observation of the learned Magistrate that the version of PW.1 unbelievable that Ext.P4 cheque was issued by the accused, while the complaint against the dealer pending
CRL.L.P.No.562 of 2012
:-4-:
before the Consumer Redressal Forum is incorrect and unwarranted. So, according to the learned counsel, due to misconception of facts and without any proper appreciation of the facts and materials on records, the trial court went wrong in its finding and acquitting the accused. Hence, according to the learned counsel, there is every chance to interfere with the findings of the court below, in case an appeal is entertained.
5. I have carefully considered the submissions made by the learned counsel for the appellant. In the light of the finding of the court below, which are supported by the evidence and materials referred to above and the arguments advanced by the learned counsel for the appellant, the question that arises for consideration is whether the petitioner has succeeded in making out a prima facie case in support of its challenge against the findings of the court below and the order of acquittal recorded in favour of the accused.
6. The crux of the case of the complainant is that the amount was due from the accused towards the complainant
CRL.L.P.No.562 of 2012
:-5-:
connected with hypothecation agreement and the accused issued Ext.P4 cheque for an amount of `6,59,500/- towards the discharge of the liability that arose out of such transaction. Whereas the case of the accused is that he never handed over Ext.P4 cheque to the complainant and the complainant misused his blank signed cheque leaves which were given to the complainant at the time of availing the loan. After considering the evidence and materials on record the trial court has found that the version of PW.1, that the accused issued Ext.P4 cheque while a case filed by the accused against the complainant is pending and the arbitration proceedings are pending against the accused, is not believable. Though it is observed by the learned Magistrate that the accused has filed a case against the complainant, the same may not be correct. But it is beyond dispute and even according to the complainant, Ext.P4 cheque was issued while arbitration proceedings, which was initiated by the complainant against the accused, was pending. Therefore, the learned Magistrate
CRL.L.P.No.562 of 2012
:-6-:
is of the opinion that it is quite unbelievable that the accused volunteered to issue Ext.P4 cheque while arbitration proceedings was pending against him that too at the instance of the complainant. The learned counsel for the petitioner submitted that, connected with such transactions, as and when arbitration proceedings are initiated, the loanees in general volunteered to settle the proceedings and towards such a settlement cheques are being issued. There is no material available in this case to substantiate the said submission. But this Court is also not rejecting the said submission as such, as the same is general in nature. The question in the present case is, while pending the arbitration proceedings against the accused, whether he had volunteered to issue Ext.P4 cheque. No document or evidence is adduced by the complainant to show that the accused was demanded to pay `6,59,500/-. PW.1 has not stated that he had witnessed the execution of the cheque. The learned Magistrate has observed that the complainant has no case that the writings in the cheques are of
CRL.L.P.No.562 of 2012
:-7-:
the accused itself. Therefore the learned Magistrate has refused to accept the evidence of PW.1. According to me, absence of any formal demand bewaring the accused the actual amount due and demanding for such payment and the absence of evidence regarding the execution and issuance of the cheque, the defence set up by the accused became more relevant and probable. As I indicated earlier, the case of the defence is that several blank signed cheques were obtained by the complainant at the time of the hypothecation agreement and the present Ext.P4 is one among such cheques. There is no evidence to show that the accused volunteered and executed the cheque. As rightly observed by the learned Magistrate, PW.1 has no claim that the writings in the cheques are made by the accused itself. It is under the above factual scenario and evidence, the trial court found that the accused has succeeded to rebut the presumption under Section 139 of the N.I. Act.
CRL.L.P.No.562 of 2012
:-8-:
7. From the above discussion and the materials and evidence referred to above, I am of the view that the learned Magistrate came into his own conclusion and finding based upon the available evidence and materials and assigning cogent reasons. Therefore it cannot be said that the findings of the court below and the judgment which sought to be impugned are perverse.
8. 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 that,
“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.”
CRL.L.P.No.562 of 2012
:-9-:
Thus, on examination of the facts and circumstances involved in the present case, in the light of the dictum laid down by the Apex Court in the decision cited supra, I find that no interference is warranted, even in case an appeal is entertained. Against the above finding and the order of acquittal no substantial reason is made out to reverse the order of acquittal.
Therefore, the petitioner has miserably failed to make out a case to grant leave under Section 378(4) of Cr.P.C. and accordingly, this Criminal Leave Petition is dismissed.
sd/- **V.K.MOHANAN, JUDGE**
skj
True copy
P.A. to Judge
