Sajikumar S/o Narayananpilla v. Thulaseedharan S/o Narayanan & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 6TH DAY OF JULY 2012/15TH ASHADHA 1934 Crl.L.P.No. 304 of 2012 -----------------------[AGAINST THE JUDGMENT DATED 30.3.2012 IN CC.NO.71/2010 of J.M.F.C.-III, KOTTARAKAKARA] ACCUSED(S)/COMPLAINANT: ---------------------- SAJIKUMAR S/O. NARAYANANPILLAI, CHEMPOLIL HOUSE, THEKKUMCHERI PUTHOOR.P.O., KOTTARAKKARA, KOLLAM DIST. BY ADVS.SRI.R.ARUN SRI.LATHEESH SEBASTIAN RESPONDENTS/STATE AND ACCUSED: ----------------------------- 1. THULASEEDHARAN S/O. NARAYANAN, NIDHIVILLA VADAKKETHU PUTHUSERI BHAGAM, VAYALA.P.O., ADOOR-691306. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031. R2 BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 06-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 304 of 2012 ---------------------------------------Dated this the 6[th] day of July, 2012** ## **O R D E R** 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 special 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 Sri.R.Arun, learned counsel appearing for the petitioner. I have also perused the judgment of the trial court. 3. The case of the complainant is that the accused is the Secretary of the Regional Technical Education Co-operative Society, Adoor and he had agreed to give an employment of the wife of the complainant in the said society, provided an amount of `1 lakh is deposited as fixed deposit in the society. It is the further case of the CRL.L.P.NO.304 of 2012 **==> picture [21 x 9] intentionally omitted <==** complainant that as directed by the accused, the amount was deposited in the society, but no employment was given to the wife of the complainant and subsequently, the accused has repaid `40,000/during the year 2006 and thereafter, the settlement was arrived under which the accused has undertaken to pay a sum of `90,000/- being the balance amount including interest up to 2007 and towards the discharge of the said amount, the accused issued Ext.P1 cheque, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and consequently, though a statutory notice was served on the accused, no amount is paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial, the complainant mounted to the box and got examined as PW1 and produced Exts.P1 to P8. No evidence either oral or documentary was produced from the side of the defence. The learned Magistrate finally found that Ext.P1 cheque is not supported by the consideration CRL.L.P.NO.304 of 2012 :-3-: mentioned in Ext.P1 and hence, it was not issued in a legally enforceable debt or liability due to the complainant. On the basis of such finding, the accused is acquitted under Section 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which the petitioner seeks leave of this Court under Section 378(4) of the Cr.P.C. 4. Learned counsel for the petitioner vehemently submitted that the issuance of the cheque is admitted by the accused and the same contains the signature of the accused and therefore, the execution is proved. But the learned Magistrate acquitted the accused on flimsy grounds and the findings of the court below are not legally sustainable. Thus, according to the counsel, the findings of the court below are liable to be interfered with and the order of acquittal is liable to be reversed and there is every scope to file an appeal for which leave has to be granted. 5. I have carefully considered the submission of the learned CRL.L.P.NO.304 of 2012 :-4-: counsel for the petitioner and I have perused the judgment of the trial court. In the light of the submission of the learned counsel, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave as sought for. The very case of the complainant itself is to the effect that `1 lakh was deposited in the society of which the accused is the Secretary for the purpose of getting an employment for his wife, as offered by the Secretary. Going by the judgment of the trial court, it can be seen that the complainant has miserably failed to prove that the transaction so claimed by the complainant is a legally recognised one. It is also relevant to note that even according to the case of the complainant itself, the transaction is between the wife of the complainant and the accused and the cheque was also given to the wife. But, in Ext.P1, the name of the payee is shown as M/s.Saji Kumar. So Ext.P1does not support the case of the complainant regarding the transaction and the execution of the cheque. Even if the claim of the complainant is admitted as true, when the CRL.L.P.NO.304 of 2012 **==> picture [21 x 9] intentionally omitted <==** cheque was issued by the accused to the complainant, it was for the complainant to get a proper cheque in the name of the complainant himself. Therefore, the finding of the court below under point No.1 is correct and no interference is warranted. Thus, it can be seen that the complainant has miserably failed to prove that the transaction between the complainant and the accused is a legally permissible one and the liability arose thereon is legally enforceable and the accused has executed and issued the cheque in favour of the complainant. The learned Magistrate in arriving his conclusion assigned various reasons, that too on the basis of the evidence and materials on record. Therefore, it cannot be said that those finding are perverse or illegal. 6. The Apex Court in the decision reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** [2012(4) Supreme 72] reiterating the limits of the appellate court has held that the appellate court can interfere with the order of acquittal only on exceptional circumstances and only when the judgment sought to be impugned is CRL.L.P.NO.304 of 2012 :-6-: found to be perverse and the appellate court should bear in mind presumption of innocence of accused and that trial court's acquittal bolsters presumption of his innocence. On examining the facts and circumstances involved in the present case and the findings of the court below and in the light of the dictum laid down by the Apex Court in the decision cited supra, I am of the view that there is not even a remote scope to interfere with the finding and the order of acquittal recorded by the trial court. If that be so, the petitioner is not entitled to get the relief as sought for. Therefore, there is no merit in this petition and accordingly, the same is dismissed. **V.K.MOHANAN** , Judge MBS/ CRL.L.P.NO.304 of 2012 :-7-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.P.NO.304 of 2012 :-8-: O R D E R Dated:2. ..2011