**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE V.K.MOHANAN**
**MONDAY, THE 1ST DAY OF OCTOBER 2012/9TH ASWINA 1934**
**Crl.L.P..No. 1059 of 2011 ( )**
**-----------------------------**
**AGAINST THE ORDER IN CC.104/2010 of ADDL.MUNSIFF/JFCM, IRINJALAKUDA, DTD.18.6.2011**
## **ACCUSED(S)/PETITIONER/COMPLAINANT:**
**---------------------------------**
**RAMAN.K., ASST. MANAGER, S/O. VELAYUDHAN EDAPARAMBIL HOUSE, VARANTHARAPPILLY.P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT.**
**BY ADVS.SRI.V.M.KRISHNAKUMAR SMT.P.R.REENA**
**COMPLAINANT(S)/ACCUSED & STATE:**
**-------------------------------**
**1. SASIDHARANV.V.,**
- **S/O. VELAYUDHAN, VATTAPARAMBIL HOUSE VARANTHARAPPILLY.P.O., MUKUNDAPURAM TALUK THRISSUR DISTRICT.**
**2. STATE OF KERALA, REP. BY PUBLIC**
**PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682011**
**BY ADV.SRI.V.BINOY RAM FOR R1 SMT.LALIZA T.Y., PUBLIC PROSECUTOR FOR R2**
**THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**ami/**
## **V.K.MOHANAN, J.**
## **------------------------------Crl.L.P.No.1059 of 2011 ------------------------------Dated this the 1[st] day of October, 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 18.6.2011 in C.C.No.104 of 2010 of the court of the Judicial First Class Magistrate-Irinjalakuda, 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 had issued Ext.P1 cheque dated 3.6.2009 for an amount of `92,000/- for the purpose of discharging a legally enforceable debt due to the complainant, which when presented for encashment dishonoured and the accused has not repaid the amount inspite of the statutory notice
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served on him. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, the complainant himself was examined as PW1 and produced Exts.P1 to P6. The accused himself mounted to the box and got examined as DW1 and produced Exts.D1 to D4 documents. After considering the entire evidence and materials, the learned Magistrate is of the opinion that the complainant has failed to take proper pleading regarding the nature of the transaction with the accused and the circumstances in which he advanced the alleged amount and also found that the accused has not issued Ext.P1 cheque to the complainant for the discharge of a legally enforceable debt and it is further found that the overwhelming evidence on record adduced from the side of the accused, particularly Exts.D1 to D4 will only probabilise the version of the accused regarding the handing over of Ext.P1 cheque to Smt.K.R.Vijaya in connection with the
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distribution of her concern and in a blank state. It is on the basis of the above finding, the trial court has held that the accused has not committed the offence punishable under section 138 of the NI Act. Consequently he is acquitted under section 255(1) of Cr.P.C. Against the above finding and order of acquittal, the complainant proposed to file an appeal for which he seeks leave of this Court.
3. I have heard Adv.Sri.V.M.Krishnakumar learned counsel for the petitioner and I have gone through the judgment of the trial court which is sought to be impugned.
4. Learned counsel for the petitioner vehemently submitted that the complainant has deposed as PW1 that, it is the accused who put the signature in Ext.P1 cheque in his presence and therefore the complainant has discharged his burden in proving the execution. But the learned Magistrate erroneously found that the complainant has not proved the execution since he has not deposed anything regarding the entries in Ext.P1 cheque. But according to
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the learned counsel, the above approach of the learned Magistrate is incorrect and the findings of the learned Magistrate are liable to be interfered with and the accused is liable to be convicted.
5. I have carefully considered the submissions of the learned counsel for the petitioner. In the light of the arguments advanced by the learned counsel for the petitioner, the question to be considered is whether the petitioner has succeeded in making out a prima facie case against the findings of the court below and to interfere with the order of acquittal recorded by the trial court in favour of the accused. The specific case of the complainant is that the accused had borrowed an amount of `92,000/-, out of the personal acquaintance between the complainant and the accused, and towards the discharge of the said liability, the accused issued Ext.P1 cheque. Whereas the specific defence advanced by the accused is that, he is an authorised distributor of “Haritha Pharmaceuticals” and
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## **Crl.L.P.No.1059 of 2011**
when he was taken that distributionship, he had handed over a blank cheque as security and the said cheque was misused by the complainant. It is also the case of the defence that, one of the cheques was made use of by Smt.K.R.Vijaya, the proprietress of the business unit for launching a prosecution against the accused as C.C.No.85 of 2008, which case was ended in acquittal of the accused. The trial court after considering the entire evidence and materials on record has specifically found that in the evidence of PW1, he had deposed that he did not know as to who had written the entries in Ext.P1. Admittedly, the accused is not an illiterate man and he is a distributor of Haritha Pharmaceuticals. If that be so, there was no necessity for the accused to bring a filled up cheque and put the signature before the complainant. Suffice to say that, no evidence is forthcoming from PW1 as to under what circumstances he received the alleged cheque which was brought in written. The learned Magistrate has also found
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that the complainant has miserably failed to show the reasons for handing over a substantially good amount of `92,000/- to the accused without any security or records. Even the counsel for the petitioner is not in a position to highlight any evidence in the deposition of PW1 to show the thickness of the friendship that existed between the complainant and the accused, that led to handing over of such a huge amount without any security or document. The above lacuna and failure in the evidence of PW1 has to be examined in the backdrops of the defence taken by the accused. According to him, the cheque in question is the one which he had handed over to the proprietor of Haritha Pharmaceuticals when he undertakes the distributorship of the proprietary concern, of which the complainant is the Manager. Exts.D1 to D4 document will probabilise the case of the accused that the said K.R.Vijaya has filed a complaint under section 138 of the NI Act which resulted in the acquittal of the accused. In the present case, the
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complainant has no specific case as to who made entries in Ext.P1 cheque and the circumstances under which he received Ext.P1 cheque which brought after filling the same, if the case of the complainant is correct. It is on the above evidence and facts, the trial court rejected the case of the complainant and opted to accept the case of defence and acquitted him. Thus it can be seen that the learned Magistrate by assigning well found and acceptable reasons came into his own findings and acquitted the accused. Therefore, it cannot be said that the findings of the court below or the judgment sought to be impugned is a perverse one.
6. 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
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**Crl.L.P.No.1059 of 2011**
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 disturb the presumption of innocence bolstered as per the judgment in question.
7. 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.
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In the result, this Criminal Leave Petition is
dismissed.
Sd/- **V.K.MOHANAN, Judge**
ami/
//True copy//
P.A. to Judge
