Sajith N.S. v. Jins Varghese and State

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 5TH DAY OF DECEMBER 2012/14TH AGRAHAYANA 1934** **Crl.L.P..No. 664 of 2012 ()** **--------------------------AGAINST THE ORDER IN CC.2864/2010 of J.M.F.C.-VII, ERNAKULAM, DTD.24.8.2012** **PETITIONER/COMPLAINANT:** **-----------------------** **SAJITH N.S., AGED 40 YEARS S/O. SATHYAN, NALLANAKUZHIYIL HOUSE HILL PALACE ROAD, TRIPUNITHURA.** **BY ADV. SRI.S.RAJKUMAR** ## **RESPONDENT(S)/ACCUSED & STATE:** **-----------------------------** **1. JINS VARGHESE, AGED 30 YEARS S/O. VARGHESE, CHERAKKAL HOUSE, NEAR OLD PETROL BUNK PIRAVAM-686 664.** **2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 05-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.664 of 2012** **------------------------------Dated this the 5[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 24.8.2012 in C.C.No.2864 of 2010 of the court of the Judicial First Class Magistrate-VII, Ernakulam, 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 borrowed an amount of `30,000/- from him and towards the repayment of the said amount, the accused issued Ext.P1 cheque dated 12.10.2006, which when presented for encashment dishonoured and the accused has not repaid the amount though a statutory notice was served on him. 2 ## **Crl.L.P.No.664 of 2012** 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 P5 documents. No document either oral or documentary was adduced from the side of the defence. The trial court after considering the entire evidence and materials has found that the complainant has not succeeded in proving that the accused had borrowed an amount of `30,000/- from the complainant and also found that the cheque was not issued by the accused to the complainant to discharge any legally enforceable liability. Consequent to the above findings, the trial court has further found that the accused is not guilty of the offence punishable under section 138 of the NI Act and accordingly he is acquitted under section 255(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for. 3 ## **Crl.L.P.No.664 of 2012** 3. Heard S.Raj Kumar, 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 accused has admitted the signature in Ext.P1 cheque and also submitted that Ext.P1 cheque, which was produced by the complainant, pertains to the account of the accused and therefore the trial court ought to have found that the presumption contemplated under section 139 of the NI Act is in favour of the complainant. Thus according to the learned counsel, the trial court went wrong in holding that the complainant has not succeeded in proving the loan transaction and the execution of the cheque in question. Therefore, in case an appeal is entertained, according to the counsel, there is every chance to interfere with the findings of the court below and the respondent/accused is liable to be convicted. 5. I am unable sustain the above contention in the 4 ## **Crl.L.P.No.664 of 2012** light of the facts and circumstances involved in the case, especially in the light of the evidence on record which are referred to by the learned Magistrate in the judgment sought to be impugned. It is admitted that in the complaint, regarding the exact date of borrowal of the amount, there is no specific averment. The learned Magistrate in paragraph 11 of his judgment, has specifically found that the date of borrowal of the amount or issuance of the cheque is not stated either in the complaint or in the proof affidavit of the complainant. According to the learned Magistrate, as per the pleading, the cheque was issued subsequent to the borrowal of the money by the accused in order to discharge the said liability. The learned Magistrate has also found that the complainant has no case either in the complaint or in the proof affidavit that, the said cheque was issued as a post dated cheque at the time of borrowal of money. Thus the above facts and the evidence are beyond dispute. If that be so, it can be safely concluded that the complainant has 5 ## **Crl.L.P.No.664 of 2012** no specific case regarding the money transaction as well as the execution and issuance of the cheque. 6. It is pertinent to note that in paragraph 12 of the judgment which sought to be impugned, the learned Magistrate has found that a specific question was put to the complainant during the cross examination that, as to whether the name and date in the cheque were written in the presence of the complainant, his answer was that the cheque was written in the presence of the complainant but he did not pay any attention to the same. The learned Magistrate has also found that a suggestion was put to the complainant that except the signature, all the writings were not that of the accused but his answer was that he is not sure about those aspects. It is on the basis of the above evidence of the complainant, the trial court was constrained to conclude that the complainant is not sure about the execution of the cheque. In this respect, it is relevant to note that the specific defence taken by the accused is to the 6 ## **Crl.L.P.No.664 of 2012** effect that the cheque in question is the one which was handed over to one Kannan from whom the cheque reached in the hands of the complainant. So regarding the execution of Ext.P1 cheque, there is no legally acceptable evidence as borne out from the observation and findings of the learned Magistrate. The petitioner has also no contra contentions. According to me, the mere admission of the signature of the accused is not sufficient to hold that the cheque was executed by the accused. The said position is now well settled. So, on a consideration of the entire facts and circumstances involved in the case, it can be seen that the complainant has no specific case regarding the original transaction and the circumstances under which Ext.P1 cheque reached in the hands of the complainant. The complainant has also failed to prove the execution of the cheque and no convincing evidence is adduced in this regard. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to 7 ## **Crl.L.P.No.664 of 2012** interfere with the findings of the court 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. 8 ## **Crl.L.P.No.664 of 2012** 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. 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/