Rafeeque Abdulla v. Johnson P.P. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** **Crl.L.P..No. 596 of 2012 ()** **--------------------------AGAINST THE ORDER IN ST.92/2009 of J.M.F.C.-II, VADAKARA, DTD.30.1.2012** **PETITIONER(S)/COMPLAINANT :** **-----------------------** **RAFEEQUE ABDULLA, AGED 28 YEARS S/O.ABDULLA, THE MANAGING PARTNER, M/S. DROPS PHARMA VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADVS.SRI.ZUBAIR PULIKKOOL** **SRI.P.S.BINU** ## **RESPONDENT(S)/ACCUSED & STATE :** **-----------------------------** **1. JOHNSON .P.P., AGED 35 YEARS S/O. POULOSE, 263-POOKKALAYIL HOUSE, 8, VELLAMUNDA POST, MANANTHAVADI, PIN-670 645.** **2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SRI.C.R.SIVAKUMAR FOR R1 SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.596 of 2012 ------------------------------Dated this the 4[th] day of December, 2012.** ## **O R D E R** The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 30.1.2012 in S.T.No.92 of 2009 of the court of the Judicial First Class Magistrate-II, Vatakara, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the complainant is that the accused, in discharge of a legally enforceable debt for an amount of `7,081/-, issued Ext.P1 cheque to the complainant which when presented for encashment dishonoured and the accused has not repaid the said amount inspite of a notice served in his address. Therefore, according to the 2 ## **Crl.L.P.No.596 of 2012** complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, Pws.1 and 2 were examined from the side of the complainant and Exts.P1 to P10 were produced. From the side of the defence, DW1 was examined but no documentary evidence is adduced. Finally, though the trial court has found in favour of the complainant that the accused has issued a cheque in favour of the complainant towards the discharge of the debt, as claimed by the complainant, it has also found that, no offence under section 138 of the NI Act was attracted against the accused as the complainant has failed in proving that proper and sufficient statutory notice was caused to serve by the complainant on the accused and accordingly, section 138 of the NI Act was not attracted and hence, the accused was acquitted 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. 3. I have heard Adv.Zubair Pulikool, learned counsel 3 ## **Crl.L.P.No.596 of 2012** for the petitioner and Adv.C.R.Sivakumar learned counsel for the 1[st] respondent. 4. The counsel for the petitioner/complainant vehemently submitted that the accused did not furnish his address to the complainant and therefore the complainant approached the bank authorities where the accused maintained an account and in the address so collected from the bank, notice was sent and therefore the complainant has discharged his duty in sending statutory notice to the accused, but the trial court over looked the above fact and came into an erroneous conclusion that there was no proper and sufficient service of notice. Therefore, the counsel submits that the findings of the court below are illegal and improper. Hence, there is every chance to interfere with the order of acquittal recorded by the trial court, in case an appeal is entertained. 5. On the other hand, learned counsel for the respondent submitted that the complainant has miserably failed to comply with the statutory requirement of serving of 4 ## **Crl.L.P.No.596 of 2012** proper notice on the accused/respondent, which is correctly found by the trial court in favour of the accused and therefore the petitioner is not entitled to get the relief as sought for in this petition. 5. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the respondent and I have gone through the judgment of the trial court, which is sought to be impugned. 6. From the discussion that contained in paragraphs 13 and 14 of the trial court judgment it appears that, Ext.P5 is the statutory notice alleged to have sent by the complainant against the accused, which was returned unserved. The reason for non service of notice was that “not known”. According to respondent, who was examined as DW1, there are 5 post offices in Vellamunda panchayat, wherein he resides and he is residing under 'Tharuvana Post Office'. Whereas, the learned Magistrate, after physical verification of Ext.P5 has stated that the particulars given in Ext.P5 was, “Johnson P.P., S/o.Poulose, 5 ## **Crl.L.P.No.596 of 2012** 263-Pookkolayil House, 8, P.O.Vellamunda, Mananthavadi, PIN:670 645”. The learned Magistrate has also stated that, as per the evidence of PW2 and Ext.P9 document, the particulars of the accused given in his bank was found as, “Johnson P.P., S/o.Poulose, 263, Pookkolayil House, 8, Vellamunda, Mananthavadi”. The learned Magistrate has further found that, in the bank address of the accused, there is no mentioning of the post office and also the pin code. It is on the basis of the above reasoning, the learned Magistrate has found that the postal address of the accused given in the bank, was the address in which the accused has formerly resided. Thus, the learned Magistrate has concluded that, Ext.P5 contains the address with a modification that the place 'Vellamunda' refers to the post office and further found that for that reason it cannot be said that the statutory notice was sent in the address furnished in the bank. The learned Magistrate has also found that, the complainant has also no case that the accused has managed to get the endorsement as, 'not 6 ## **Crl.L.P.No.596 of 2012** known' in Ext.P5 from the postal authority and the complainant has not taken any steps to show that the address shown in Ext.P5 is the correct postal address of the accused. Thus, it is crystal clear that the contentions of the petitioner that he had sent Ext.P5 to the accused after ascertaining the address from the accused bank is also incorrect and improper. According to me, it is also relevant to note that no evidence is adduced by the complainant by examining the postal authorities or by producing any postal document to show that, the accused was residing in the address given in Ext.P5. Hence, it can be seen that the finding of the court below that, there was no proper and sufficient statutory notice in terms of the proviso to section 138 of the NI Act is absolutely correct, since such findings are based upon the available evidence and materials on record. Hence, it cannot be said that the findings of the court below are perverse or illegal. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the findings of the court 7 ## **Crl.L.P.No.596 of 2012** below and to acquit the accused, especially when the petitioner had failed to show that the judgment of the trial court is perverse or illegal. 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 as follows:- “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, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to 8 ## **Crl.L.P.No.596 of 2012** disturb the presumption of innocence bolstered as per the judgment in question. 8. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed as the same is devoid of any merit. **V.K.MOHANAN, Judge** ami/