**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE V.K.MOHANAN**
**TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933**
**Crl.L.P..No. 880 of 2011()**
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**CC.63/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY**
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## **PETITIONER/COMPLAINANT**
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**P.V.POLY, AGED 41, PROPRIETOR, PARAKKA AGENCIES, S/O. LATE VARGHESE, PARAKKA HOUSE, K.KUNNU P.O., PUSHPAGIRY DESOM, THRISSUR DISTRICT, PIN-680 311.**
**BY ADV. SRI.P.V. PAULSON**
## **RESPONDENTS/STATE AND ACCUSED:**
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**1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.**
**2. SARUN, AGED 30, S/O. V.S.BALACHANDRAN, VELLOLI HOUSE, WEST KORATTY DESOM, KALLUR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 680001.**
**THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**SCL.**
## **V.K.MOHANAN,J**
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## **Crl. L.P.NO.880 of 2011**
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Dated this the 27[th] day of September, 2011
## **ORDER**
The complainant in a prosecution for the offence u/s. 138 of the NI Act is the petitioner herein, who seeks special leave of this court u/s.378(4) of 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 u/s.255(1) of Cr.P.C.
2. The case of the complainant is that the complainant and the accused known each other and the accused used to purchase cement from his shop on credit basis and connected with the purchase of cement made on various occasions, a total sum of Rs.1,20,000/- were due to the complainant from the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 30.4.2010, after its due execution, from the house of the accused and when the said cheque presented for encashment, it was dishonoured. The amount was not repaid in spite of statutory notice and thus, according to the petitioner, the accused has committed the offence punishable u/s.138 of the NI Act. With the above
## **Crl. L.P.NO.880 of 2011 2**
allegation, the complainant approached the Judicial First Class Magistrate -II, Chalakkudy by filing a complaint, whereupon cognizance was taken for the offence u/s.138 of the NI Act and instituted CC No.63/11. During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P5. Though no document was produced from the side of the defence, the accused himself was mounted to the box and got examined as DW1. The trial court after considering the entire evidence and materials on record came into the conclusion that Ext.P1 is not a voluntarily executed cheque and issued by the accused and consequently, held that the complainant has miserably failed to prove the execution of Ext.P1 and thus, the accused is acquitted u/s.255(1) of Cr.P.C. It is the above order of acquittal sought to be challenged by filing an appeal for which the present petition is filed u/s.378(4) of Crt.P.C seeking leave of this Court.
3. I have heard Sri.Paulson.P.V., learned counsel for the
petitioner and I have also perused the judgment in detail.
4. The counsel for the petitioner vehemently submitted
that the complainant has succeeded in establishing the
## **Crl. L.P.NO.880 of 2011 3**
allegation against the accused and he produced Ext.P1 cheque from his possession, which pertain to the account maintained by the accused. It is also the submission of the learned counsel that though, the accused received the statutory notice, no reply was given and no evidence is adduced by the accused in support of his version that Ext.P1 cheque was issued at the instance of the Police. Thus, according to the learned counsel the findings of the learned Magistrate that the complainant failed to prove the execution and issuance of the cheque is factually incorrect and against the evidence on record. On the strength of the decision reported in **(2011 (2) KLD 208) Anil Sacsar v. Mrs.Shreenath Spinners Pvt. Ltd,** the learned counsel for the petitioner submitted that the accused has admitted the signature in Ext.P1 cheque, which pertain to the account of the accused, irrespective of the fact whether the liability was actually due from the drawer of the cheque or from some other person, the liability u/s.138 of the NI Act is attracted against the accused who is the drawer of the cheque. Thus, according to the learned counsel, the findings of the learned Magistrate is against the dictum laid down by the Apex court in the above decision and
## **Crl. L.P.NO.880 of 2011 4**
therefore, the petitioner is entitled to get leave as prayed for, so as to file an appeal against the judgment in question. In the light of the above argument advanced by the learned counsel for the petitioner and in view of the findings of the trial court, on the basis of the materials referred to therein the question to be considered is whether the petitioner is succeeded in making out a case, so as to grant special leave u/s.378(4) of Cr.P.C to challenge the findings of the trial court and the order of acquittal by filing an appeal.
5. During the course of the hearing of the matter, the learned counsel read over to me, the allegation that contained the complaint and the deposition of PW1, during his cross examination. The specific case of the complainant/petitioner is that the accused issued Ext.P1 cheque towards the discharge of the liability that arose connected with the purchase of cement by the accused from the complainant. The case of the accused is that he was the site supervisor in a company, namely, M/S.Deens and the said company subsequently stop its business due to financial crisis and it is the further case of the accused is that, he was summon to the Police Station and was threatened by the
**Crl. L.P.NO.880 of 2011 5**
Police authorities, and as demanded by the Police, they obtained signed blank paper from him and his mobile phone and he was also intimidated that he will be implicated him in non bailable offence. When PW1 was examined during the cross examination, he had deviating from the averments contained in the complaint and in the proof affidavit, admitted that the accused used to purchase cement from the complainant for the company namely M/S.Sabaros, which is situated Koratty Infopark. It was also admitted by PW1 that amount due to the complainant is on account of the purchase of cement made by the accused for Infopark. It is also deposed by PW1, that the accused purchased cement for various construction companies like M/S.Sabaros, M/S/Deens India and Dominic. It is also admitted by PW1, that he used to supply cement on the basis of purchase orders placed by the accused over telephone. It is further relevant to note that during the cross examination, PW1 conceded that he filed a complaint against the accused before Koratty Police Station during 2010, March or April, and he requested the Police to recover money from the accused towards the purchase made by him. PW1 has also admitted that the accused was summon to the
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Police Station in pursuance of the complaint preferred by him and at the intervention of the Police a written undertaking was obtained from the accused to pay the amount to the complainant and thereafter, the accused issued the cheque to the complainant. Thus, it can be seen that during the trial of the case, the case that set up and admitted by the complainant is entirely different, from the complaint as well as the proof affidavit. It is further relevant to note that the deposition of PW1 that he made during the cross examination, is in consolation with the defence set up by the accused that the cheque in question was obtained at the instances of the Police.
6. It is also relevant to note that beside the mere claim of PW1 that the accused purchased the cement for himself, no documentary evidence is produced by the complainant to show that the cement was purchased by the accused for himself. Especially when the transaction claimed by the complainant is commercial in nature, there must be certain documents. But no such bill or order form are placed. If that be so, according to me, the trial court is fully justified in its finding that the entire case attempted to built up by the complainant has been
**Crl. L.P.NO.880 of 2011 7**
shattered beyond any scope of repair. Thus, the finding of the trial court that Ext.P1 cheque is not voluntarily executed by the accused is not out of contest, but the materials and evidence on record support the above finding. That being the position, even if an appeal is entertained, there is no scope for any interference with the above findings and there is no substantial reason to interfere with the order of acquittal recorded by the trial court. Therefore, I find no reason to grant leave as prayed for in this petition.
In the result, there is no merit in this leave petition and accordingly, the same is dismissed, declining leave u/s.378(4) of Cr.P.C.
**V.K.MOHANAN, JUDGE.**
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