IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 2ND DAY OF JANUARY 2013/12TH POUSHA 1934
Crl.L.P..No. 732 of 2012 --------------------------CC.64/2010 of J.M.F.C.-II, ALAPPUZHA
PETITIONER/COMPLAINANT:
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R.RADHAKRISHNAN NAIR, S/O.N.RAGHAVAN PILLAI, KOCHUPARAMBIL HOUSE, THEJUS NAGAR, PAZHAVEEDU P.O.ALAPPUZHA.
BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.T.M.BINITHA
RESPONDENTS/STATE AND ACCUSED:
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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. SINDHU.L, D/O.GOPI, CHIRAYIL VEEDU, PALACE WARD, MCH POST OFFICE, LANE ON THE EASTERN SIDE OF MCH, ALAPPUZHA, PIN 688005.
BY ADV. SRI.C.R.SANISH BY ADV. SRI.NAVEEN THOMAS BY ADV. SMT.C.M.DHANY R1- BY PUBLIC PROSECUTOR -SMT.R.REMA
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J. ------------------------------------Crl.L.P.No.732 of 2012**
## **---------------------------------------Dated this the 02[nd] day of January, 2013**
## **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 his complaint, acquitted the accused under Section 255(1) of the Cr.P.C.
2. Heard the learned counsel for the petitioner.
3. The case of the complainant is that the accused borrowed `50,000/- from the complainant on 12/01/2007 and issued Ext.P1 cheque dated 15/01/2007 towards the discharge of the said liability and when the said cheque presented for encashment dishonoured due to the reason insufficient fund and the accused has not repaid the amount covered by the dishonoured cheque inspite of the
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statutory notice served on her. Thus, according to the learned counsel for the petitioner/complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case besides the complainant who examined as PW.1, PW.2 has also examined and also produced Exts.P1 to P6 documents. The trial court after considering the entire evidence and materials on record especially after physical verification of Ext.P1 cheque, came into a conclusion that the complainant has miserably failed to prove the execution of Ext.P1 cheque and therefore no presumption under Section 139 of N.I. Act can be drawn in favour of the complainant and consequently held that, it is not safe to conclude that the accused issued Ext.P1 cheque to the complainant in discharge of debt of `.50,000/-. On the basis of the above finding, the court below further found that, the accused is not guilty and accordingly acquitted her under Section 255(1) of 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.
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4. I have heard the learned counsel for the petitioner and I have perused the judgment of the trial court which sought to be challenged.
5. The learned counsel for the petitioner vehemently submitted that there is no legal bar in making entries in Ext.P1 cheque by using different pen or different colour of ink and therefore, the findings of the court below regarding the execution of the cheque against the prosecution is not legally sustainable. It is also the submission of the learned counsel that though the defence has taken a version to the effect that Ext.P1 cheque was given to the brother of the complainant, the said person was not examined and as such no material or evidence is produced from the part of the defence to substantiate its version. The learned counsel submitted that, overlooking the above fact, the learned Magistrate has found that the defence case regarding the issue of Ext.P1 cheque is more probable, which finding of the learned Magistrate, according to the counsel is liable to be interfered with as the same is erroneous and illegal.
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6. I have carefully considered the arguments raised by the learned counsel for the petitioner. It appears that even according to the version of the complainant the amount was borrowed on 12/01/2007 and the cheque was given on the same date bearing a post date that 15/01/2007. Whereas the specific defence taken by the accused, who is a lady, is to the effect that the cheque in question was given as security connected with an earlier transaction with the brother of the complainant and the said cheque misused by the complainant for filing the present complaint. It appears that, the learned Magistrate considered the case of the complainant in the above backdrops of the defence version. In paragraph 10 of the judgment which sought to be impugned, the learned Magistrate has specifically observed after physical verification of Ext.P1 cheque that signature in Ext.P1 is of ball point pen and the other entries are in ink pen. It is also found that there is an overwriting in the name of the payee in letter “a” in Radhakrishnan. According to PW.1, as per the
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observation of the learned Magistrate, the prosecution case is that, all the entries as well as the other entries are written by the accused herself. It is the above version of the prosecution created doubt in the mind of the court below and the court below refused to accept the above version of the prosecution in the absence of any convincing explanation for using different pen to fill up the cheque, if the transaction, under which the cheque was given, one and the same. According to me, the above finding of the court below is absolutely correct. If the cheque in question is given after its due execution as claimed by PW.1, I failed to understand why the 2 pens are used for filling up a cheque. If PW.1 has got a case that, he had witnessed the execution of cheque it is for him to explain the above discrepancy, but there is no convincing explanation. It is in this juncture, the defence version become relevant. According to the defence, the cheque in question was given in blank form to the brother of the complainant connected with the earlier transaction and it is the said cheque misused for the present case. In
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the absence of any possible and convincing explanation from the part of the complainant with respect to the entries made in the cheque by using two pens, the learned Magistrate is fully correct in his finding that the defence version is more probable. Thus, the reasoning given by the learned Magistrate, according to me, is supported by the materials and the evidence on record and therefore it cannot be said that those findings are unreasonable, perverse or illegal, so as to interfere in appeal against an order of acquittal.
7. 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.”
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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 possible, 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
True copy
P.A. to Judge
