Ponnappan K.V. Kaithathil Veliyil v. Binu and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934 Crl.L.P..No. 448 of 2012 ---------------------------- CC.70/2009 of C.J.M., ALAPPUZHA PETITIONER/COMPLAINANT:: ------------------------ PONNAPPAN K.V. KAITHATHIL VELIYIL, AVALOOKUNNU P.O., ALAPPUZHA. BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.HARIHARAN RESPONDENTS/ACCUSED & STATE:: -------------------------------- 1. BINU, S/O.PONNAPPAN, PERUMANA VEEDU, KRISHNANPILLAI JUNCTION AVALOOKUNNU P.O., ALAPPUZHA, PIN-688 006. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682 031. BY ADV. SRI.B.PRAMOD- FOR R1 BY ADV. PUBLIC PROSECUTOR SRI.P.M.SANEER – FOR R2 THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **-------------------------------------Crl.L.P.No.448 of 2012** ## **-------------------------------------Dated this the 21[st] day of August, 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 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. Heard the learned counsel for the petitioner and the respondent. 3. Learned counsel for the petitioner vehemently submitted that the signature in Ext.P1 cheque is admitted by the accused and the accused has not issued any reply to Ext.P3 legal notice and therefore the learned Magistrate is wrong in her finding and acquitting the accused. The Crl.L.P.No.448/2012 2 learned counsel submits that the respondent/accused is the driver of the bus owned by the son of the complainant and the amount was released out of that relationship and thus Ext.P1 cheque issued to discharge the above liability. It is also the submission of the learned counsel that, though the accused advanced several contentions, those contentions have no bearing in the light of the case advanced by the complainant, since all what stated by the accused is with respect to the transaction between himself and son of the complainant. Thus according to the learned counsel in case an appeal is entertained, there is every possibility of setting aside the order of acquittal and findings of the court below. 4. On the other hand, learned counsel for the respondent/accused after taking me through paragraphs 4 and 5 of the judgment of the trial court it is submitted that the findings of the learned Magistrate is absolutely correct and legal. According to the learned counsel the claim of the complainant, that he had released an amount of `.1,18,000/- Crl.L.P.No.448/2012 3 in favour of the accused on 14/06/2005, is unbelievable, since it was PW.1, who filed Ext.D4 complaint earlier to the date of alleged transaction. It is also the submission of the learned counsel for the respondent that by adducing cogent evidence and materials respondent/accused had succeeded in making out a probable case which is accepted by the court below and therefore no interference is warranted. 5. I have carefully considered the submissions made by the learned counsel for the appellant as well as the respondent and I have gone through the judgment of the trial court which is sought to be impugned. 6. The trial court has specifically found that the complainant has not stated either in the complaint or in the affidavit in lieu of chief examination about the date of transaction. An amount of `.1,18,000/- is not a small amount as far as the parties are concerned. If such an amount was borrowed by the accused, the same should have been mentioned in the complaint or at least in the Crl.L.P.No.448/2012 4 chief affidavit filed in lieu of chief examination. It is in the above backdrops of the complainant's case, the defence advanced by the accused has to be examined. According to the accused the cheque in question was given in blank form as a security when he joined the service under DW.1 as a driver. According to the accused, the said cheque is misused by DW.1 through PW.1, when Ext.D1 agreement was not materialised. 7. In this juncture it is relevant to note that when PW.1 was examined he denied the suggestion of the defence regarding the transaction between the accused and DW.1 the son of the complainant with respect to the sale of vehicle of DW.1. Though PW.1 pretended ignorance, Ext.D1 shows that he is one of the witnesses to the original agreement for the sale of the vehicle. The said fact itself is sufficient to disbelieve the pleading of PW.1. Moreover, as rightly pointed out by the learned counsel for the respondent, complainant had already filed Ext.D4 complaint Crl.L.P.No.448/2012 5 dated 04/03/2005 against the accused. If that be so, it is quite unbelievable that after Ext.D4 complaint, PW.1 has released an amount of `.1,18,000/- as a loan to the accused on 14/06/2005, which date of transaction, is not mentioned in the complaint or in the chief affidavit. 8. In paragraph 8 of the judgment the trial court has also found that the signature of the cheque and the other writings were in two different coloured inks in different handwritings and it is manifestly appears that the signature in the cheque was not on the same date on the other writings. It cannot be said that the above facts of the trial court is incorrect or out of context, in the background of the transaction and the facts and circumstances which I indicated earlier. If that be so, according to me, even if an appeal is entertained, there is not even a remote scope to interfere with the above findings of the trial court or order of acquittal recorded in favour of the accused. Crl.L.P.No.448/2012 6 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 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 that no scope for interference, even in case an appeal is entertained against the above finding and the order of acquittal and there is no substantial ground to reverse the order of acquittal. Therefore, the petitioner has miserably failed to make out any exceptional or substantial reason to interfere with the finding of the court below and to show Crl.L.P.No.448/2012 7 that the judgment sought to be impugned is a perverse one. In the result, the petitioner has miserably failed to make out a case so as to grant special leave as sought for in this petition and accordingly, the same is dismissed. ## **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge