S. Radhakrishnan v. Subhash S. and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Crl.L.P..No. 794 of 2011() -------------------------OS.99/2008 of SUB COURT, PATHANAMTHITTA ST.727/2008 of J.M.F.C.-II,PATHANAMTHITTA .................... PETITIONER (S): -------------------- S.RADHAKRISHNAN, S/O.SIVARAMA PILLAI, RANJU SADANAM, THOPPIL, ARUVAPPULAM P.O.,KONNNI PATHANAMTHITTA. BY ADV. SMT.ANITHA M.N. (EKM) RESPONDENT(S): --------------- 1. SUBHASH S., MARUTHIMOOTTIL HOUSE, ARUVAPPULAM P.O.,KONNI, PATHANAMTHITTA-689691 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.L.P..No. 794 of 2011() 2 ## PETITIONERS EXHIBITS: ANNEXURE-A1 : TRUE COPY OF THE DECREE IN O.S.NO.99/2008 BY THE HON'BLE SUB COURT, PATHANAMTHITTA DATED 29.9.2008 RESPONDENTS EXHIBITS: NIL //TRUE COPY// PA TO JUDGE ## **V.K.MOHANAN,J** **------------------------------** ## **Crl. L.P.NO.794 of 2011** **--------------------------------------------** Dated this the 2[nd] 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 accused borrowed an amount of Rs.1,25,000/- from him on 16.12.2006, Rs.75,000/- on 25.3.2007 and Rs.75,000/- on 17.9.2007 after executing a promissory note on each occasion. According to the complainant, on the last date of transaction the accused has agreed to given the entire amount within 3 months and thus, when the said amount was demanded the accused issued the cheque in question dated 20.12.2007 for an amount of Rs.2,75,000. The said cheque when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and instead of the statutory notice, ## **Crl. L.P.NO.794 of 2011 2** the accused failed to pay the cheque amount and thus he had committed the offence punishable u/s.1238 of the NI Act. With the said allegation and by filing a complaint, the complainant approached the Judicial First Class Magistrate-II, Pathanamthitta, whereupon cognizance was taken for the offence u/s.138 of the NI Act and instituted ST No.727/2008. During the trial of the case, the complainant himself was mounted to the box and gave evidence as PW1. Beside that the complainant has also produced Ext.P1 to P6. On conclusion of the trial, the trial court has found that when the accused had denied the execution of the cheque as well as the liability, it is for the complainant to prove it but, he failed and therefore, no presumption can be drawn u/s. 139 of NI Act and consequently, found that Ext.P1 cheque was not drawn and issued in discharge of a legally enforcible debt. Consequently, the accused is acquitted u/s. 138 of the NI Act. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the leave of this court is sought for u/s.378(4) of Cr.P.C. 3. I have heard Smt. Anitha.M.N, learned counsel appearing for the petitioner and I have perused the judgment of the trial court. 4. The crux of the allegation of the complaint against the ## **Crl. L.P.NO.794 of 2011 3** accused is that the accused borrowed a total sum of Rs.2,75,000/- through various occasions and finally towards the discharge of the said liability, the accused issued Ext.P1 cheque which when presented for encashment dishonoured. The defence set up by the accused to the effect that he never borrowed any amount from the complainant and it was his friend one Mr.Manoj had borrowed money from the complainant and the said Manoj is absconding and according to the accused, since he introduced the said Manoj to the complainant, the complainant came to the house of the accused and threatened and obtained a cheque and white paper affixed with revenue stamp and signed by the accused, for keeping them, till the above said Manoj repay the amount. The trial court after considering the materials and evidence on record has found that as per the evidence of PW1, the last promissory note was written by another person since the accused was not well and the same was written by one Rajendran Pillai, Cheruvallayil House, Aruvappulam and at the time of the trial, the said promissory note was entrusted to his counsel. But the trial court has further found that, the promissory note is not produced in this case. It is on the basis of the above factual background and relying on the decision of this Court reported in **(2009 (2) KLT 491) Shaji v.** ## **Crl. L.P.NO.794 of 2011 4** **Ignatious** . The trial court came into the above conclusion and acquitted the accused. 5. Counsel for the petitioner vehemently submitted that the accused did not issue any reply to the statutory notice and there is no dispute regarding the signature that contained in Ext.P1 cheque and therefore, the accused has admitted the liability and hence according to the learned counsel, the trial court is not justified in its finding and acquitting the accused. 6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and findings of the court below on the basis of the materials referred to in the judgment. In the light of the arguments advanced by the learned counsel for the petitioner and in view of the findings of the court below on the basis of the materials and evidence referred therein, the question to be considered is whether the petitioner has succeeded in making out of a case so as to grant special leave by this Court u/s.378(4) of Cr.P.C. 7. Going by the judgment of the trial court, it can be seen that the accused has not admitted, the execution and issuance of the cheque and the transaction claimed by the complainant. It is a settled position of law that when the execution of the cheque and issuance of the same and the liability are disputed, it is for ## **Crl. L.P.NO.794 of 2011 5** the holder of the cheque or the complainant to positively approve the same otherwise, the presumption contemplated u/s.139 of theNI Act will not be available for the rescue of the complainant. In the present case, even though the defence has disputed claim raised by the complainant and denied the execution and issuance of the cheque and gave an explanation as to how his signed cheaue reached in the possession of the complainant, the complainant has not adduced any positive evidence in support of his claim and the allegation. The trial court has specifically found that even according to PW1, the transaction between the complainant and the accused was supported by documents namely, promissory note and the last promissory note executed by the accused is with the complainant. It has also found by the learned Magistrate that, according to PW1, as the accused was not well, the last promissory note was written by one Rajendran Pillai. But though, the complaint was in possession of the last promissory note, allegedly executed by the accused, he has not produced the same before the court during the trial. It is also that the complainant had failed to examine the said Rajendran, so as to prove that the accused has executed such promissory note. It is under the above factual background, the trial court considered the decision of this court in **Shaji v. Ignatious** **Crl. L.P.NO.794 of 2011 6** **reported in (2009(2) KLT 491)** and found against the complainant. The trial court has also found that regarding the execution of the cheque PW1 the complainant did not give a consistent version. According to the learned Magistrate, PW1 at first, stated that he did not know, who wrote the cheque and that the accused brought a filled up cheque, but later he stated that the accused took a cheque from the drawer of his table in the shop and written the cheque. According to the learned Magistrate, when the complainant was confronted with the discrepancies in his answers, he had clarified that he thought that the question was about, who wrote on the top of the cheque. Thus, the learned Magistrate, who got the privilege to assess the demeanor of the witness the complainant and for the reason stated in the judgment held that PW1 cannot be believed regarding the execution of the cheque. It is under the above factual background and positive of evidence, the trial court has concluded that Ext.P1 cheque was not drawn and issued in discharge of a legally enforceable debt due to the complainant. In the light of the above discussion and in view of the materials referred to by me, from the judgment of the trial court, according to me, the learned Magistrate is fully justified in his finding and acquitting the accused u/s. 255(1) of Cr.P.C and ## **Crl. L.P.NO.794 of 2011 7** relieving him of the charge for the offence u/s.138 of the NI Act. Therefore, even if an appeal is entertained according to me, there is no scope for any interference, with the finding and the order of acquittal recorded by the learned Magistrate. In the absence of any compelling circumstances or substantial reasons, the appellate court will not be justified in interfering with the order of acquittal and in that account also there is no scope for any interference with the order of acquittal. Therefore, the petitioner has miserably failed to make out a case, so as to grant special leave u/s.378(4) of Cr.P.C. 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.** pm/