N. Nagendran v. Gandhi, S/o Muniyappan, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934** **Crl.L.P..No. 672 of 2012 ()** **--------------------------AGAINST THE ORDER IN ST.229/2010 of C.J.M.,KOLLAM, DTD.27.3.2012** **PETITIONER/COMPLAINANT.:** **-----------------------** **N.NAGENDRAN, UDAYA NAGAR-102, KUNNIL VEEDU, ASRAMAM P.O., KOLLAM.** **BY ADV. SRI.THYPARAMBIL THOMAS THOMAS** **RESPONDENT(S)/ACCUSED AND STATE:** **---------------------------------** **1. GANDHI, S/O.MUNIYAPPAN, TRA-33, C/O.WILSON KL-XLI-317, MUNDAKKAL, KOLLAM-687 071.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV.SRI.R.SATISH KUMAR FOR R1 ADV.SMT.S.HYMA, PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.672 of 2012** **------------------------------Dated this the 21[st] day of November, 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 27.3.2012 in S.T.No.229 of 2010 of the court of the Chief Judicial Magistrate-Kollam, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that, on 1.1.2010, the accused borrowed a sum of `1 lakh from the complainant and on the same day, towards the discharge of the said liability, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured as there was no sufficient fund. According to the complainant, though 2 ## **Crl.L.P.No.672 of 2012** notice was sent demanding payment of the amount covered by the dishonoured cheque, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act. The complainant himself was examined as PW1 and Exts.P1 to P6 were produced from the side of the complainant. From the side of the defence, Dws.1 and 2 were examined and Exts.D1 to D3 and X1 were marked. After considering the entire evidence and materials, the trial court has found that the complainant has failed to prove the transaction between himself and the accused and finally found that the prosecution has not succeeded in proving that the accused has committed the offence punishable under section 138 of the NI Act. Consequently, the accused was acquitted under section 255 (1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged, for which leave of this Court is sought for. 3. I have heard Adv.Thyparambil Thomas Thomas, learned counsel for the petitioner and Adv.R.Sathish Kumar, 3 ## **Crl.L.P.No.672 of 2012** learned counsel for the 1[st] respondent. I have also perused the judgment of the trial court. 4. Learned counsel for the petitioner submitted that Ext.P1 cheque which pertains to the account of the accused was produced by the complainant from his possession and the accused has also admitted the signature. Therefore, the trial court ought to have found that the complainant has succeeded in proving his case against the accused and consequently the accused are liable to be convicted. According to the learned counsel, the trial court on a flimsy ground acquitted the accused by over looking the above evidence and materials. 5. In the light of the contention advanced by the learned counsel for the petitioner, the question to be considered is whether the petitioner has succeeded in making out a case in support of his challenge against the findings of the court below and further, whether the petitioner has succeeded in making out any substantial or compelling grounds to interfere with the order of acquittal 4 ## **Crl.L.P.No.672 of 2012** recorded in favour of the accused. 6. In the present case, the specific case of the complainant is that the accused borrowed a sum of `1 lakh on 1.1.2010 and towards the discharge of the said liability, the accused issued Ext.P1 cheque on 29.1.2010 itself. The specific case taken by the accused is that, the accused gave Ext.P1 blank cheque to one Rajan and the complainant secured the above cheque and filled it up at his own choice. The said Rajan is the father in law of the complainant. It is also the contention of the defence that, Ext.P1 cheque was issued by the accused and signed on the same in his capacity as a Managing partner of a firm by name, 'Saravana Rolling Mills', and the accused has already quitted the said Saravana Rolling Mills. It is in this backdrop of the case of the complainant as well as of the defence, the trial court considered the allegation of the complainant and the evidence on record. Going by the case of the complainant, it is relevant to note that, the sum of `1 lakh was given to the accused for a period of one month 5 ## **Crl.L.P.No.672 of 2012** but no explanation is forthcoming as to how such a huge amount was given to the accused, without accepting any security or deed for the sum of `1 lakh, for a period of 29 days. The petitioner has miserably failed to convince this Court as to under what circumstances, the amount was paid and also as to the original transaction between the complainant and the accused. In this juncture it is relevant to note that the trial court after physical verification of Ext.P1 cheque, it has found that the same is seen signed by the accused with blue ball point pen whereas the other entries in the cheque are with black ball point pen. Thus according to the learned Magistrate, he was sure that Ext.P1 cheque was not fully written and signed by the accused at the very same time. But according to the complainant, the accused approached him with duly filled up cheque but he signed it in his presence and delivered it to him. If that version of the complainant is admitted or treated as correct, it is to be presumed that the complainant was ready with the sum of `1 lakh on 1.1.2010. There is no 6 ## **Crl.L.P.No.672 of 2012** evidence from the part of the complainant that the accused has approached him on a previous date and demanded for a sum of `1 lakh and there was any agreement to the effect that he will repay that amount. For all these aspects, there is no evidence at all. So it cannot be believed that the accused brought a filled up cheque. Therefore, it is incumbent upon the complainant to explain the difference in the ink with respect to the entries in the cheque. It is in the above backdrop, the defence version become relevant. According to the accused, Ext.P1 cheque was given in blank form to one Rajan who is none other than the father in law of the complainant and it is the said cheque which was misused by the complainant by making entries in his own option. So the said defence cannot be ruled out in the absence of any positive and convincing evidence. It is also relevant to note that it has specifically found by the learned Magistrate that Ext.P1 cheque was signed by the accused in his capacity as a Managing partner of Saravana Rolling Mills. But the complainant has no case that he had any 7 ## **Crl.L.P.No.672 of 2012** financial transaction with Saravana Rolling Mills. It is also found by the learned Magistrate that, there is no mention in the complaint that the accused borrowed an amount from the complainant in his capacity as the Managing partner of Saravana Rolling Mills. The learned Magistrate has further found that during the cross examination of PW1-the complainant, he has admitted that Ext.P1 cheque is a cheque which belonged to Saravana Rolling Mills and he had deposed that he did not know that the accused was a partner of the above firm. So according to the learned Magistrate, the complainant does not know whether the accused borrowed an amount from the complainant in his individual capacity or his capacity as a Managing partner of the firm. So according to the learned Magistrate, those infirmities also create serious doubt about the credibility of the case of the complainant. It is on the basis of the above infirmities and contradiction in the evidence of the complainant and the improbabilities of the case of the prosecution, the trial court came into the above findings. 8 ## **Crl.L.P.No.672 of 2012** So according to me, the above findings of the court below appear to be very genuine, legal and proper and the same cannot be treated as perverse or illegal so as to interfere in an appeal. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the findings of the court below and to acquit the accused, especially when the petitioner had failed to show that the judgment of the trial court as 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 9 ## **Crl.L.P.No.672 of 2012** 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 judgment in question. 8. 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 his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed as the same is devoid of any merit. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge