## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 15TH DAY OF OCTOBER 2012/23RD ASWINA 1934
Crl.L.P..No. 614 of 2012
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ST.710/2010 of C.J.M.,KOLLAM
PETITITONER/COMPLAINANT:
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SATHYADASAN, AGED 72 YEARS, S/O.KRISHNAN, THRIKKADAVOOR HOUSE, PATTATHANAM NAGAR - 72, PATTATHANAM P.O. KOLLAM-691 021.
BY ADVS.SRI.RAJA VIJAYARAGHAVAN SRI.M.T.SURESHKUMAR
RESPONDENTS:-ACCUSED & STATE.:
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1. RENJITH, AGED 32 YEARS, S/O.THANKAPPAN, SREELEKSHMI, (PARASSERRY PADINJATTETHIL), KILIKOLLOOR P.O. KOLLAM-691 004.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 15-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J. --------------------------------------------Crl.L.P.No.614 of 2012**
## **---------------------------------------------Dated this the 15[th] day of October, 2012**
## **ORDER**
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 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. The case of the complainant is that the accused approached the complainant on 21/05/2010 and borrowed an amount of `4,00,000/- and towards the repayment of the said amount, the accused issued a cheque bearing No.024672 dated 20/07/2010. The certified copy of the same is produced as Ext.P1 and when the cheque was presented for encashment, the same was returned
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dishonoured with a reason ‘fund insufficient’. It is also the case of the complainant that, though a statutory notice was served on the accused-respondent, no amount was repaid and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. The complainant himself mounted to the box and examined as PW.1 and he has produced Exts.P1 to P7 documents. From the side of the accused, DW.1 was examined and marked Exts.D1 to D3. After considering the entire evidence and materials, the trial court has found that the case advanced by the accused is more probable than the case of the complainant and accordingly the accused is found not guilty and acquitted under Section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is sought for.
3. I have heard Adv.Sri.Raja Vijayaraghavan, learned counsel for the petitioner and I have also perused the judgment in question.
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4. The learned counsel for the petitioner vehemently submitted that, relying on Exts.D1 to D3 documents, the trial court went wrong in disbelieving the case of the complainant. According to the learned counsel, the transaction covered by Exts.D1 to D3 documents and in the present case is entirely different one and there is no evidence to show that the complainant was aware of the criminal case lodged by DW.1, his son against the accused. In order to substantiate the above ground, learned counsel pointed out that Ext.D1 came into existence on 21/08/2010, whereas the cheque in question dated 20/07/2010 and the amount borrowed according to the complainant was on 21/05/2010. The learned counsel after taking me through the judgment strenuously submitted that, while the complainant was examined as PW.1, he has deposed before the court about the entire transaction and the issuance of the cheque. But the trial court went wrong in not accepting the case of the complainant and in his
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further finding that the defence has succeeded in making out a probable case is not correct.
5. I have carefully considered the arguments advanced by the learned counsel for the appellant. In the light of the argument advanced by the learned counsel for the petitioner and in the light of the findings of the court below which are based upon the evidence and materials on record and referred to in the judgment, the question that emerges for consideration is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment sought to be impugned. The specific case of the complainant is that the accused borrowed an amount of `.4,00,000/- on 21/05/2010 from the complainant and towards the discharge of the said liability, accused issued Ext.P1 cheque on 20/07/2010, which when presented, was dishonoured for insufficiency of fund. Whereas, the specific case of the accused is that, he had borrowed an amount of `1,00,000/- from the complainant on
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02/04/2008, but he was actually paid only `.90,000/- as the complainant had deducted an amount of `10,000/towards interest. It is the further case of the accused that, at the time of the borrowal, the complainant had obtained a blank signed stamp paper bearing No.R 027078, which was purchased on 01/04/2008, along with two signed blank cheques which were given as security. It is the further case of the accused that, he had given interest from 20/06/2008 to 02/12/2008 @ `10,000/per month and thus he had paid a total sum of `1,90,000/as interest. Since there is default in payment of interest, the complainant demanded principal and interest and thus arose a dispute, which ultimately ended in filing the present complaint against the accused, misusing one of the cheques so obtained. The learned Magistrate, while appreciating the entire evidence and materials, has observed, while giving evidence, PW.1 has stated that he had only seen the accused signing the cheque and he does not know as to who filled the cheque. On the basis
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of the evidence of PW.1, the learned Magistrate has found that, PW.1 is unaware of the execution of the cheque. I find no fault with the above findings of the learned Magistrate, since absolutely no evidence is forthcoming from the part of the complainant regarding the execution of the cheque. No other independent evidence nor any contemporary document was produced to prove the execution of the cheque. Now it is well settled that, the mere presence of the signature in the cheque is not sufficient to hold that the cheque was duly executed by the account holder. According to me, the lapse in the evidence of PW.1 regarding the execution of the cheque to a certain extent is tallying with the case of the complainant, that he had issued blank signed cheque to the complainant while he was borrowing `1,00,000/- from the complainant.
6. It is also relevant to note that from the judgment of the trial court it is spell out that the son of the complainant, who is examined as DW.1, has filed a
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criminal case against the accused as evident from Exts.D1 to D3 documents. For the alleged execution of Ext.D3 agreement, the stamp paper is seen to have been purchased on 01/04/2008 in the name of the accusedRenjith herein. The case of the accused is that he obtained a sum of `1,00,000/- from the complainant on 02/04/2008, on which date the complainant obtained blank stamp paper which was purchased on 01/04/2008 and signed blank cheques. It is the said stamp paper made used for the Ext.D3 agreement. The learned Magistrate has found that, though the stamp paper is dated 01/04/2008, the date of Ext.D3 agreement is 15/11/2008. The learned counsel for the appellant has pointed out that all the documents Exts.D1 to D3 cannot be taken to disbelieve the case of the complainant, but at the very same time according to me, by producing Exts.D1 to D3 documents, the accused has succeeded in making out a strong doubt in the mind of the court against the case of the complainant. In the absence of
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any clinching and convincing evidence regarding the execution of Ext.P1 cheque and in the backdrops of criminal case and also Ext.D3 agreement in the stamp paper dated 01/04/2008, which is purchased in the name of the accused, according to me, the learned Magistrate is fully correct and justified in his finding that the case of the accused is more probable. So the reasoning assigned by the learned Magistrate in support of his finding and for disbelieving the case of the complainant and for recording his satisfaction regarding the probability of the case of the defence are supported by the evidence and materials on record and the said reasoning or the judgment in question cannot be treated as perverse.
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 that,
“In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court
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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 dictum laid down by the Apex Court in the decision cited supra, I find that no interference is possible, even in case an appeal is entertained. Against the above finding and the order of acquittal no substantial reason is made out to reverse the order of acquittal.
Therefore, the petitioner has miserably failed to make out a case to grant leave under Section 378(4) of Cr.P.C. and accordingly, this Criminal Leave Petition is dismissed.
## **V.K.MOHANAN, JUDGE**
skj
