IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933
Crl.L.P..No. 626 of 2011()
-------------------------ST.3997/2006 of J.M.F.C.-III,THRISSUR
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PETITIONER : COMPLAINANT
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OMANA PAUL, NEELANKAVIL HOUSE, NORTH BAZAR, OLLUR, THRISSUR DISTRICT.
BY ADV. SRI.V.BINOY RAM
RESPONDENTS: RESPONDENTS
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1. JOY, S/O. ANTONY, PALATHINGALKARAN HOUSE, THAZHEKKAD.P.O, KALLETUMKARA, THRISSUR DISTRICT - 680 683.
2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R2 PUBLIC PROSECUTOR SRI P.A. SALIM
THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISISON ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J. ---------------------------------------Crl.L.P. No.626 of 2011 ----------------------------------------**
Dated the 11th day of August, 2011
## **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 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 her 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.1,50,000/- from her and towards the repayment of the said amount, the accused issued Ext.P1 cheque which when presented for encashment, was returned for want of sufficient fund in the account maintained by the accused and according to the complainant, the accused has not paid the amount covered by the cheque in question in spite of a statutory notice and therefore offence under section 138 of the NI Act is attracted against the accused and, with the said
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allegation, the complainant approached the Judicial First Class Magistrate Court-III, Thrisssur by filing a complaint based upon which cognizance was taken for the offence under section 138 of the NI Act and instituted S.T.No.3997/2006. During the trial of the case, the complainant herself was examined as PW1 and Exts.P1 to P6 documents were produced from the side of the complainant. Though no document is produced from the side of the defence, DW1 was examined. Towards the conclusion of the trial, the learned Magistrate has held that the complainant has failed to prove that Ext.P1 cheque was issued by the accused for discharging a legally enforceable debt due to the complainant. Accordingly, the learned Magistrate further found that the accused is not guilty under section 138 of the NI Act and acquitted him under section 255(1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing appeal for which leave of this Court under section 378(4) Cr.P.C. is sought for.
3. Heard Sri Benoy Ram V., the learned counsel appearing for the petitioner. I have also perused the judgment of the trial
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court.
4. The learned Magistrate after considering the entire evidence and materials on record and after careful appreciation of the same, it was specifically found that the complainant has no consistent case regarding the payment of the amount to the accused and towards the above finding, the learned Magistrate has also assigned several reasons which I am not proposed to restate again. During the cross examination of the complainant, she had set up a new case about which she had never stated either in the complaint or in the affidavit in lieu of chief examination regrading the sale of two cars. The learned Magistrate, after appreciating the evidence of PW1, has also held that the above version of PW1 cannot be accepted. According to the learned Magistrate, during the cross examination, PW1 has also admitted in terms of the suggestion made by the defence that the accused was acting as the agent of PW1, the complainant, who used to give money to others for interest. Thus, on the basis of the above fact and certain other evidence and circumstances, the learned Magistrate found that
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the case of the defence, that the cheque was not issued for discharging a legally enforceable debt due to the complainant is correct. It was on the above main findings , the learned Magistrate acquitted the accused.
5. The learned counsel for the petitioner vehemently submitted that by adducing evidence, the complainant has established the case against the accused and the accused has not disputed the signature in Ext.P1 cheque. It is also the submission of the learned counsel that though the accused had received the statutory notice, he refused to issue any reply for the same and he had not adduced any evidence to substantiate the case of the defence and therefore, the learned Magistrate is wrong in his finding.
6. In the light of the arguments advanced by the learned counsel and in view of the findings arrived on by the court below, and especially in the light of the evidence and materials referred to by the learned Magistrate in his judgment, the point to be considered is whether the petitioner has succeeded in making out a case to grant special leave under section 378(4) Cr.P.C. As I
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indicated earlier, the case of the complainant is that there was loan transaction between herself and the accused and towards the amount borrowed by the accused, the accused issued the cheque. But during cross examination, the defence has succeeded in brining out several material facts and circumstances which would disprove the claim of the complainant. The trial court after stating the evidence and materials , in paragraph 8 of its judgment, it is specifically found that PW1 has no consistent case regarding the mode of payment of the loan amount. Because of the discrepancies and infirmities that contained in the evidence of PW1 regarding the loan transaction, the trial court has further found that the complainant has no specific case regrading the payment of the amount to the accused. It is also further found by the learned Magistrate that, though PW1 during cross examination tried to set up a new case, which never mentioned either in the complaint or in the chief affidavit which is probable and incorrect. It is also discernible from the trial court judgment that, during the cross examination of PW1, she had admitted
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that the accused is one of her agents of her loan business and she had also admitted that she had released loan in favour of one Murali which was not repaid by himself and there was a case connected with the said loan transaction in which the said Murali was convicted for the offence under section 138 of the NI Act. All these details were never stated by the complainant either in the complaint or in the affidavit. So it is on this point, the defence case becomes more relevant. According to the accused, while loan was released in favour of Murali, blank cheque leaf of the accused was obtained by the complainant and it is one of such cheque leaves, used by the complainant for filing the present case. When there is no consistent case regarding the payment of loan to the accused as claimed by the complainant, and when PW1 tried to set up a new case, in the box, and the said facts and circumstances coupled with her admission during cross examination regarding the transaction between the complainant and one Murali, are sufficient to hold that the accused has succeeded in making out a probable case. In **Krishna Janardhan Bhat v. Dattatraya Hegde** (2008 (1)
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KLT 425(SC), the Apex Court has held that in a prosecution for the offence under section 138, even though the accused has not mounted to the box, the defence can discharge the burden of rebutting the presumption by using the materials available on record and the attendant circumstances. According to me, the dictum laid down by the Apex Court in the decision squarely applicable in the present case and therefore the above submission of the learned counsel that the accused has not adduced any evidence, is unsustainable.
In the light of the above facts and settled legal position, I am of the view that even if an appeal is entertained, there is no scope for any interference with the finding arrived on by the court below and there is no fact which is yet to be settled. From the available materials and evidence discussed by the learned magistrate, and in the light of the findings arrived on by the court below, I am of the view that there is no illegality so as to interfere with the order of acquittal and there is no substantial reason or compelling circumstances to reverse the order of acquittal in case an appeal is entertained. Therefore, according
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to me, the petitioner has miserably failed to make out a case so as to interfere with the order of acquittal.
In the result, there is no merit in the petition and accordingly, the same is dismissed declining leave under section 378(4) Cr.P.C.
**V.K.MOHANAN, JUDGE**
**KVM/-**
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