N.B. RIYAS THAYYIL PADINJATTATHIL v. ANTO THOMAS VINUJA DALE and STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934 Crl.L.P..No. 656 of 2012 ------------------------[AGAINST THE JUDGMENT DTD.4.6.2012 IN CC.467/2008 of J.M.F.C.-II, KOLLAM] PETITIONER/COMPLAINANT: ---------------------- N.B.RIYAS THAYYIL PADINJATTATHIL, AYIRAM THENGU CHERRY KOOTTIKKADA, KOLLAM DISTRICT BY ADVS.SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENTS/ACCUSED & STATE : ------------------------------ 1. ANTO THOMAS VINUJA DALE, (PUNNAVILA VEEDU) MAYYANADU KOLLAM DISTRICT .PIN 691303 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682031 R1 BY PUBLIC PROSECUTOR SMT.MADHU BEN. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15- 11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.L.P.No. 656 of 2012** **----------------------------------------** Dated this the 15[th] day of November, 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. The case of the complainant is that the accused borrowed a sum of Rs.3 lakhs from the complainant on 28.11.1997 and he issued two postdated cheques for Rs.1,80,000/- of the State Bank of Travancore, Mayyanadu Branch and Rs.1,20,000/- of the Kollam Cooperative Urban Bank. When Ext.P1 cheque dated 16.4.2010 presented for encashment, dishonoured for want of sufficient fund. It is the further case of the petitioner that statutory notice was served on CRL.L.P.NO.656 of 2012 :-2-: the respondent, but no amount is paid by the accused 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 and Exts.P1 to P5 documents were marked from the side of the prosecution. No evidence is adduced from the side of the defence. The trial court, after considering the entire evidence and materials, came to a conclusion that the accused did not issue Ext.P1 cheque in the discharge of legally enforceable debt or other liability. Consequently, the accused is found not guilty and he is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for. 3. Learned counsel for the appellant/petitioner submitted that though the accused received statutory notice, he neither made any reply nor paid the amount covered by the cheque, but the learned Magistrate overlooked the above fact and went wrong in holding that the cheque in question was not given by the accused towards the CRL.L.P.NO.656 of 2012 :-3-: discharge of any liability. It is also the submission of the learned counsel that when the complainant has mounted to the box and examined as PW1 and produced the documents, no evidence is adduced by the accused, but the learned Magistrate without considering the above facts, acquitted the accused. It is also the contention of the counsel that the trial court is wrong in holding that the entries in Ext.P1 cheque were not written by the accused or any person related to him. According to the learned counsel, the court below ought to have held that the accused has handed over the cheque to the complainant which was signed in front of the complainant. Thus, according to the learned counsel, the findings of the court below are incorrect and illegal. 4. In the light of the contentions raised by the counsel for the petitioner and in view of the evidence and materials on record which are referred to by the learned Magistrate in the judgment sought to be impugned, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave as prayed for. CRL.L.P.NO.656 of 2012 :-4-: 5. From the impugned judgment, it can be seen that as per the admission of PW1 during the time of cross-examination, he had admitted that the accused earlier borrowed Rs.50,000/- from him on 10.1.2007 and thereafter borrowed Rs.3 lakhs on 28.11.2007, but as per the averment in the complaint, the case of the complainant is that the accused borrowed an amount of Rs.1,80,000/- from him on 28.11.2007. On the basis of the above factual difference between the averment in the complaint and the evidence of PW1, the learned Magistrate has found that the version of PW1 is fully contradictory to the contentions in the complaint. Regarding the execution of cheque, according to the learned Magistrate, there is no acceptable and legal evidence. It is also discernible from the judgment of the trial court that the specific case of the accused is that he had borrowed Rs.60,000/- and Rs.40,000/- from one Samsooth and issued one cheque and stamp paper to him. It is the further case of the accused that he had returned the above amount with interest to the said Samsooth. But, he did not return the cheque and in order to get more CRL.L.P.NO.656 of 2012 :-5-: interest, the present case is filed by misutilising the said cheque. The learned Magistrate has found that though the complainant's counsel argued that PW1 did not know Samsooth, PW1 deposed before the court that at the time of giving the amount, his wife and his friend Samsooth were present. Accordingly, the learned Magistrate has found that the complainant was having acquaintance with the said Samsooth. It is further relevant to note that the learned Magistrate has found that during the cross-examination of PW1, he had stated that the entries in Ext.P1 were written by the children of the accused and the above assumption of the complainant justifies the stand of the accused that he had not executed the cheque, since the handwriting of other entries in Ext.P1, except his signature, is not of the accused or any other person related to him. So regarding the execution of the cheque, there is no convincing evidence. It is also found by the learned Magistrate that on a perusal of Ext.P1, the account of PW1 is stated in Ext.P1. But, PW1 during his examination has categorically stated as follows:- CRL.L.P.NO.656 of 2012 :-6-: **==> picture [338 x 70] intentionally omitted <==** The above evidence of PW1 goes against the claim of PW1 that the accused had executed and issued the cheque. Without disclosing the account details of the complainant to the accused, the account of PW1 cannot find a place in Ext.P1, if actually the cheque was executed by the accused. So, on the basis of the above evidence and materials and circumstances, the learned Magistrate came to a conclusion that the complainant has failed to prove the execution of Ext.P1 cheque. In the light of the above discussion, evidence and materials, according to me, the finding given by the learned Magistrate is supported by available evidence and materials on record and therefore, it cannot be said that the conclusion arrived by the learned Magistrate and the finding therein are perverse or illegal. 6. In a recent decision of the Apex Court reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), CRL.L.P.NO.656 of 2012 :-7-: the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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, 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. CRL.L.P.NO.656 of 2012 :-8-: Accordingly, this Criminal Leave Petition is dismissed. V.K.MOHANAN, Judge. MBS/