Ramakrishnan v. Prakasan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934** ## **Crl.L.P..No. 408 of 2012 ( )** **----------------------------** **(ST.1845/2005 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,PALAKKAD)** **PETITIONER/COMPLAINANT: -----------------------** ## **RAMAKRISHNAN** **S/O. SANKARAN, AGED 53 YEARS, PULLUPARA HOUSE, COYALMANNAM ALATHUR, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS/ACCUSED & STATE::** **---------------------------** **1. PRAKASAN, S/O. MADHAVAN, AGED 42 YEARS, KARIPANKULANGARA, THENKURISSI, ALATHUR.** **2. STATE OF KERALA, REP. BY PUBLIC** - **PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV. PUBLIC PROSECUTOR SMT. S. HYMA** **BY ADV. SRI.K.P.BALAGOPAL** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SCL.** ## **V.K. MOHANAN, J.** ## **-------------------------------------Crl.L.P. No. 408 of 2012** **-------------------------------------Dated this the 13[th] day of September, 2012** ## **ORDER** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') is the petitioner herein, who seeks special leave of this court under Section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.) to file an appeal against the judgment 10-8-2007 in S.T. No.1845/2005 of the Court of the Judicial First Class Magistrate-I, Palakkad, since the learned Magistrate 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 Rs.54,750/- from the complainant during the month of August, 2004 and when demanded the said amount, the accused issued Ext.P1 cheque dated 22-2-2005. When the cheque was presented for encashment, dishonoured for **Crl.L.P. No. 408 of 2012** 2 want of sufficient funds in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque, in spite of a statutory notice. Therefore, the accused has committed an offence punishable under Section 138 of the N.I. Act. During the trial of the case, the complainant himself was examined as PW1 and produced Exts P1 to P5. On the other hand, from the side of defence, DWs 1 to 4 were examined including the accused and produced Ext.D1 passbook. The trial court after considering the entire evidence and the materials, came into the conclusion that the complainant has not filed the case in the capacity of a Director of the Chitty Company, but, filed the same on his personal capacity and the evidence on record, does not indicate that the accused is having personal liability towards the complainant. Thus, it is found that the accused succeeded in rebutting the presumptions available in favour of the holder of the cheque. Accordingly, the accused is found not guilty and he is acquitted under Section 255(1) of Cr.P.C. It is the above findings, an order of acquittal sought to be challenged for which the petitioner seeks leave of this court. **Crl.L.P. No. 408 of 2012** 3 3. I have heard Adv. Sri. Jacob Sebastian, counsel for the petitioner. The counsel submitted that the accused has admitted his signature in Ext.P1 cheque and therefore the execution and issuance of the cheque is proved and it is the further submission of the counsel that there is no contradiction between the evidence of PW1 and DW4 and therefore the findings of the court below is not correct and the accused has not discharged his burden in rebutting the presumptions which is otherwise available in favour of the complainant. Therefore, the counsel submits that in case an appeal is entertained, there is every possibility to interfere with the findings of the court below and the order of acquittal. 4. I have carefully considered the submissions of the learned counsel for the petitioner and I have gone through the judgment sought to be impugned. 5. In the light of the argument advanced by the counsel for the petitioner and in the light of the findings of the court **Crl.L.P. No. 408 of 2012** 4 below, on the basis of the evidence and materials referred to the judgment sought to be reviewed, the question to be considered is whether the petitioner has succeeded in getting leave as sought for, otherwise whether the petitioner succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the accused. 6. The prosecution's allegation is that the accused borrowed a sum of Rs.54,750/- from the complainant during the month of August, 2004 and towards the discharge of the said liability, the accused issued Ext.P1 cheque. Whereas the specific defence taken by the accused is that the accused is no way indebted to the complainant as claimed by him and it is the further case of the accused that Ext.P1 cheque was not executed and issued in favour of the complainant as claimed by him. According to the accused, Ext.P1 cheque was given connected with the chitty transaction between the complainant and the accused and at the time of giving the said cheque, it was a blank **Crl.L.P. No. 408 of 2012** 5 cheque and the same is misused by the complainant in the present complaint. The trial court has already found that the complainant has no case that the present complaint was filed connected with the chitty transaction with the accused. But the complainant is specific that the amount mentioned in the cheque was borrowed by the accused as a personal loan. But no evidence is adduced in this regard. Even the counsel for the petitioner failed to show the acquaintance between the complainant and the accused and the thickness of the friendship so as to release a substantially good amount to the accused without obtaining any security or record. So regarding the alleged transaction absolutely there is no evidence other than the interested version of PW1, the complainant. Therefore, the case for the complainant has to be examined in the backgrounds of the defence advanced by the accused. Before considering the defence case, it is pertinent to note that during the cross examination of PW1 - the complainant, he had admitted that the accused was one of the subscribers of the chitty conducted by the complainant. The other evidence of the defence shows that the **Crl.L.P. No. 408 of 2012** 6 accused is one of the subscriber of the chitty conducted by the complainant and DW4 has categorically stated that at the time of the chitty transaction, the complainant had obtained a blank cheque from the accused. To get over the above evidence of the defence, the learned counsel for the petitioner submitted that the cheque so obtained by the complainant was returned to the accused. The above submission is made by the counsel on the basis of the evidence of PW1, who claimed that the cheque already obtained from the accused connected with the chitty returned to him. No evidence or materials produced by the complainant to show that the cheque obtained by the complainant from the accused connected with the chitty transaction, returned to the accused. In this juncture, it is pertinent to note that, though the complainant has claimed that the Ext.P1 cheque was issued when he demanded the accused to clear the personal loan availed by the accused, no documentary evidence is produced in support of the above claim regarding the formal demand made to the accused for the repayment of the personal loan amount. It is in the light of the above evidence 7 ## **Crl.L.P. No. 408 of 2012** and materials, the trial court refused to accept the case of the complainant and acquitted the accused. 7. Thus going by the evidence and materials referred to by the learned Magistrate in the judgment sought to be impugned, it can be seen that the findings of the court below and its observation are supported by the evidence on material. The complainant has deliberately suppressed the chitty transaction between the complainant and the accused and when he was cross examined, he was forced to admit those transactions and also deposed before the court to the effect that the cheque obtained during the chitty transaction has returned to the accused, but that claim is not substantiated. Thus, according to me, the facts and circumstances involved in the case and the evidence and materials referred in the judgment shows that the findings of the court below is fully correct and supported by good reasons. The petitioner has no case that the trial court has overlooked any materials or evidence available in favour of the complainant. **Crl.L.P. No. 408 of 2012** 8 8. 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 above decision, 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 is made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. 9 ## **Crl.L.P. No. 408 of 2012** Therefore, I find no ground 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 leave petition is dismissed. **Sd/V.K.MOHANAN, JUDGE** Scl. **True Copy** **PA to Judge**