Sasi P. Vazhapallil House v. Sree Gokulam Chitty & Finance Co. Pvt. Ltd. and State of Kerala

## **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. 490 of 2012 ()** **--------------------------AGAINST THE ORDER IN CC.529/2009 of J.M.F.C., KAYAMKULAM, DTD.28.12.2011** **ACCUSED(S): ----------** **SREE GOKULAM CHITTY & FINANCE CO.PVT.LTD. HAVING ITS REGISTERED OFFICE AT SREE GOKULAM TOWERS, NO.66, ARCOT ROAD, KODAMBAKAM, CHENNAI-24 REP. BY ITS MANAGING DIRECTOR, A.M.GOPALAN REPRESENTED BY T.R.KRISHNAN KUNJU, S/O.THYAGARAJA PANICKER, KRISHNA VILASOM, KARUVATTA P.O., KARUVATTA VILLAGE.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** **COMPLAINANT(S):** **---------------** **1.SASI.P. VAZHAPPALLIL HOUSE, CHERUKOLE P.O., KARAZHMA, MAVELIKKARA, PIN-690 104.** **2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV.SRI.V.MADHUSUDHANAN FOR R1 SMT.S.HYMA, 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.490 of 2012 ------------------------------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 28.12.2011 in C.C.No.529 of 2009 of the court of the Judicial First Class Magistrate-Kayamkulam, 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 issued Ext.P2 cheque for an amount of `47,774/- to the complainant in discharge of the liability arising out of the chitty transaction between the complainant and the accused. But on presentation of the cheque, the same dishonoured for want of sufficient fund and the accused has not repaid the amount covered by the dishonoured cheque inspite of a statutory notice served on him. Thus according 2 ## **Crl.L.P.No.490 of 2012** to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P7 documents. From the side of the defence, though no witness was examined, Exts.D1 to D4 were marked. The trial court after an elaborate consideration of the evidence and materials, came into a conclusion that absolutely there is no material or evidence from the side of the prosecution to establish that the cheque amount was actually liable to be paid by the accused at any point of time. Thus according to the learned Magistrate, the case of the accused that he issued Ext.P1 cheque in blank form, became relevant. It is also found that the defence version that entries in Ext.P2 cheque were made without his knowledge or consent, appears to be more probable and possible. Thus finally the trial court has found that no presumption under section 139 of the NI Act can be drawn in favour of the complainant and accordingly held that the prosecution has failed to establish its case beyond 3 ## **Crl.L.P.No.490 of 2012** reasonable doubt. Consequently, the accused is acquitted under section 255(1) of Cr.P.C. It is the above findings and order of acquittal proposed to be challenged in an appeal, for which the petitioner prays for leave of this Court. 3. I have heard Adv.Smt.N.Sudha learned counsel for the petitioner and I have also 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 no case that he had discharged the liability arising out of such a transaction, especially when the accused admits the chitty transaction between the complainant. It is also the submission of the learned counsel that Ext.D3, which is relied on by the learned Magistrate in support of his findings in favour of the accused, cannot be acted upon as the same has no evidential value. Learned counsel submitted that an amount of `47,774/-, for which Ext.P2 cheque was issued, is legally due to the complainant and the same is entitled to get realised from the accused but the learned Magistrate 4 ## **Crl.L.P.No.490 of 2012** did not consider the above aspect. It is also the submission of the learned counsel that, though Ext.D3 pass book contains the seal of the complainant-company, the accused has not produced any receipt to show the remittance claimed to have made by the accused as per the entries in Ext.D3. Therefore, the counsel submits that if an appeal is entertained, there is every chance for interference with the findings of the court below and therefore the petitioner is entitled to get the leave as prayed for. 5. In the light of the above arguments of the learned counsel for the petitioner and in the light of the findings of the court below in the judgment sought to be impugned in view of the evidence and materials referred to therein, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of its challenge against the judgment of trial court. The specific case of the complainant is that connected with the chitty transaction between the complainant and the accused, when the accused was failed to discharge the liability on 5 ## **Crl.L.P.No.490 of 2012** demand, the accused executed and issued Ext.P2 cheque for an amount of `47,774/- Whereas the specific case taken by the accused is that, no such amount is due to the complainant and he had not executed and issued the cheque as claimed by the complainant. According to the accused, he had issued two signed blank cheques to the complainant at the time of receipt of the said prize amount and the entries in Ext.P2 cheque were written without his knowledge or consent. It is also the case of the defence that in pursuance to the demand made by the complainant, he had issued Ext.D1 reply disputing the liability shown in Ext.P2. In para 9 of the judgment, the learned Magistrate has found that “As regards execution of the cheque PW1 stated that the entries in the cheque were written by the friend of the accused who signed the cheque only”. According to the learned Magistrate, the nature of such a transaction creates doubts regarding genuineness of the transaction. It is also the opinion of the learned Magistrate that, the above fact alone is not a ground to discard the prosecution evidence 6 ## **Crl.L.P.No.490 of 2012** regarding execution of Ext.P2 cheque. Therefore, the learned Magistrate ventured into examine the further case of the complainant and its evidence. 6. As I indicated earlier, out of the prosecution documents, ie., 7 in numbers, Ext.P1 is the resolution and Ext.P7 is the payment voucher. Exts.P2 to P6 are the documents including the cheque and the demand etc. No documentary evidence is produced by the complainant to substantiate its case with respect to the actual liability and the execution of the cheque. The learned Magistrate has found that, “the complainant being the company engaged in chitty business, should have maintained proper registers and accounts relating to the transaction with its customers. But no such material is placed before court to examine whether the amount shown in Ext.P2 cheque was due to be paid by the accused on the date shown in the cheque”. It is also found that, Ext.P7 is only a payment voucher in respect of the chitty transaction with the accused and Ext.P7 does not disclose anything regarding the details of payment made by 7 ## **Crl.L.P.No.490 of 2012** the accused and the amount due under the account. Therefore, absolutely there is no documentary evidence to support the claim of the complainant. Even the version of PW1, who is interested in the complaint, shows that the entries in Ext.P1 are not made by the accused. Eventhough the complainant has miserably failed to produce the documents to substantiate its claim, the accused has produced certain documents to substantiate its case. Thus, Ext.D3 is the pass book issued from the complainant's company, from where it is seen that the accused has paid a sum of `65,350/- in his account and PW1 is admitting the said fact. Therefore, according to the learned Magistrate, the balance remaining amount is only `34,650/-, for which the complainant had issued Ext.D4 notice, but Ext.D4 is undated. Further the learned Magistrate has observed that there is no explanation from the side of the complainant as to how the amount due was enhanced to the tune of `47,774/-, ie., the amount shown in Ext.P2 when the balance amount was only `34,650/- as per Ext.D4. PW1 was not able 8 ## **Crl.L.P.No.490 of 2012** to explain with specific details as to how this amount was arrived. Learned counsel for the petitioner submits that the said amount is calculated and arrived, as the complainant/ company is entitled to get 18% interest. But as I indicated earlier, no evidence or material is produced by the complainant to justify the amount shown in Ext.P2. The absence of positive evidence from the part of the complainant in this regard is relevant in the backdrops of the defence, since according to the accused, Ext.P2 cheque was not executed and issued by him as claimed by the complainant. It is also relevant to note that by issuing Ext.D1 reply notice, the accused has disputed the amount calculated and claimed by the complainant and still then, no convincing evidence is produced by the complainant. It is under the above circumstances, the learned Magistrate refused to accept the case of the complainant and arrived at his own findings by assigning sound reasons. Therefore, it cannot be said that the judgment in question or the findings of the court below are perverse or illegal. 9 ## **Crl.L.P.No.490 of 2012** 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. 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 10 ## **Crl.L.P.No.490 of 2012** 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. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge