O.N. Sathi v. P.L. Preman and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934 Crl.L.P..No. 594 of 2012 --------------------------- CC.1/2010 of J.M.F.C. - II, PERUMBAVOOR PETITIONER/COMPLAINANT: ------------------------O.N.SATHI, AGED 59 YEARS, W/O RAJAN (LATE), OLOPPILLIL VEEDU, CHOVVARA, CHOVVARA P.O., PIN - 683 571, ALUVA, ERNAKULAM DISTRICT. BY ADV. SRI.SAKIR.K.H. RESPONDENTS/ACCUSED AND STATE: --------------------------------- 1. P.L.PREMAN, S/O LAKSHMANAN, PEEDIAKKAL HOUSE, NADAMA, THRIPPPUNITHARA, ERNAKULAM DISTRICT-682 301. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.L.P.No.594/2012 ## APPENDIX ' - PETITIONER S EXHIBIT: ANNEXURE A1 : COPY OF THE ORDER DTD.03/04/2012 PASSED BY THIS HONOURABLE COURT IN CRL.M.C.No.3698/2011. True copy P.A. to Judge ## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.594 of 2012 ---------------------------------------------Dated this the 09[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 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 an amount of `1,80,000/- from the complainant and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 31/01/2005, which, when presented for collection, was returned as dishonoured for want of sufficient fund in the account of the accused and the accused has not repaid the amount in spite of statutory notice served on him. Thus Crl.L.P.No.594/2012 : 2 : according to the complainant the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant herself was examined as PW.1 and produced Exts.P1 to P5. The accused got examined as DW.1 and no other evidence was adduced. The learned Magistrate, after considering the entire evidence and materials, has found that the transaction alleged by the complainant is shrouded in mystery and accordingly found that the complainant has not succeeded in proving the borrowing of `1,80,000/and the issuance of cheque in discharge of the said liability. Consequent to the above finding the accused is found not guilty and accordingly he is acquitted. It is the above finding and order of acquittal proposed to challenge in an appeal for which leave of this Court is sought for. 3. The learned counsel for the petitioner vehemently submitted that the accused has admitted the signature in Ext.P1 cheque and thereby the complainant Crl.L.P.No.594/2012 : 3 : has established the execution of the cheque but the learned Magistrate refused to accept the above evidence and erroneously found in favour of the accused. According to the learned counsel, the learned Magistrate has found that the complainant has no capacity to pay the amount as claimed by her and therefore went wrong in holding that the complainant has failed to prove the transaction. Hence, according to the learned counsel the petitioner has got a good case in support of her challenge against the judgment and therefore the petitioner is entitled to get leave as sought for. 4. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have gone through the judgment of the court below carefully. 5. The specific case of the complainant is that, the accused borrowed `1,80,000/- from her, for one month's time and towards the discharge of the said liability, the accused issued Ext.P1 cheque. Whereas the case of the Crl.L.P.No.594/2012 : 4 : accused is that when the accused had been a subscriber of a kuri conducted by KSFE and for the purpose of availing the kuri amount, he had asked the complainant to become a surety and accordingly, as per the suretyship of the complainant, he had received the kuri amount. It is the further case of the accused that subsequently he could not remit the amount before the KSFE and when KSFE recovered the amount from the salary of the complainant, the complainant approached the accused and demanded a blank signed cheque as security for the amount that had already been recovered from her salary and also for the future instalments to be recovered from her salary and it was under these circumstances Ext.P1 cheque reached in the hands of the complainant. It is also the case of the accused that, as he could not pay the amount to the complainant, the complainant did not return the blank signed cheque given as security. According to the accused, though only `30,000/- were attached and recovered from the salary of the Crl.L.P.No.594/2012 : 5 : complainant, the complainant, with ulterior motive filled up the cheque for `1,80,000/- and thus misusing the said cheque, filed the present complaint. In the present case when the accused received the statutory notice, he had sent a reply stating the above facts. 6. The learned Magistrate after considering the entire evidence and materials refused to believe the case of the complainant for which the learned Magistrate has assigned several reasons. From the available evidence and materials the learned Magistrate has found that the complainant is a widow and working as a peon in Government Service and therefore it is quite unbelievable that she would give such a huge amount to the accused without getting any documents in this regard. Even according to the complainant no document is obtained or security while handing over `1,80,000/-. According to PW.1 an amount of `1,80,000/- is a huge amount. She had also admitted that she was only having `70,000/- in her hand and the remaining amount i.e., `1,10,000/- Crl.L.P.No.594/2012 : 6 : claimed to have received from her brother. It is also relevant to note that, though the learned counsel for the petitioner submitted that an amount of `1,80,000/- was given to the accused, the cheque in question was also for `1,80,000/- and no interest or any other advantage was claimed by the complainant from the accused. So, that part of the evidence of PW.1 and the circumstances, do not suggest that the claim of the complainant that he had released sum of `1,80,000/- in the accused is believable. 7. Moreover, the trial court has also found that the complainant was a surety for the accused who availed chitty amount from the KSFE and it is also beyond dispute that amounts were recovered from the salary of the complainant towards the amount due to the KSFE from the accused. In this juncture it is relevant to note that in the complaint there is no averment regarding the exact date on which the accused borrowed the amount. But the cheque is dated 31/01/2005. But during the cross-examination PW.1 has stated that the amount was Crl.L.P.No.594/2012 : 7 : borrowed during the month of December, 2004. But there is no clear cut evidence as to when the amount allegedly was borrowed by the accused and as to whether the alleged kuri transaction and attachment of salary was effected prior to the alleged borrowal of `1,80,000/- or the alleged attachment and recovery of salary taken place on a subsequent date. 8. The learned Magistrate has further found after going through Ext.P1 cheque dated 31/01/2005 and the dishonoured memo, that the cheque was dishonoured on 07/02/2005. According to the learned Magistrate, if the cheque was dishonoured on 07/02/2005, nobody thereafter would stand as surety for the accused in the kuri transaction. If the attachment of the salary of the complainant is before dishonour of the cheque, then also it is unbelievable that the complainant again would have released an amount of `1,80,000/- to the accused. In this juncture it is also relevant to note that, though the complainant has got a case that the accused paid a sum Crl.L.P.No.594/2012 : 8 : of `70,000/-, the amount which was recovered from the salary of the complainant towards the repayment of the kuri amount to KSFE, no evidence is adduced. It is on the basis of the above facts and circumstances the learned Magistrate was forced to found that the transaction claimed by the complainant is shrouded in mystery. So according to me, the accused has succeeded in making the case of the complainant improbable and doubtful. The facts and circumstances stated above justify that the findings of the court below and the defence case is correct and probable. If that be so, according to me, it cannot be said that the findings of the court below and the judgment sought to be impugned are perverse or illegal. 9. 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 Crl.L.P.No.594/2012 : 9 : 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 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. ## **V.K.MOHANAN, JUDGE** skj