Sathyan.K.K. v. Rema w/o Manikandan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934 Crl.L.P..No. 459 of 2012 -------------------------[AGAINST THE JUDGMENT DTD.26.4.2012 IN CC NO.1112/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRSSUR) PETITIONER/COMPLAINANT: ---------------------- SATHYAN.K.K., AGED 49 YEARS S/O.KRISHNAN, KARUVATH HOUSE, ANTHIKKAD DESOM ANTHIKKAD VILLAGE, THRISSUR DISTRICT. BY ADVS.SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS/ACCUSED AND STATE: ----------------------------- 1. REMA W/O.MANIKANDAN, VALAPARAMBIL HOUSE, PERINGOTTUKKARA KIZHAKKUMURI.P.O., THRISSUR DISTRICT. 680 001. 2. THE STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 682 031. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 01- 08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 459 of 2012** ## **---------------------------------------Dated this the 1[st] day of August, 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. Counsel for the petitioner vehemently submitted that to a certain extent, the defence had admitted the transaction between the complainant and particularly, the accused has admitted the loan, execution of cheque and certain documents. It is also the submission of the learned counsel that the defence has not succeeded in making out even a probable case and the case advanced by the accused is proved as false. Therefore, the trial court is not correct in its finding CRL.L.PNO.459 of 2012 **==> picture [21 x 9] intentionally omitted <==** and acquitting the accused. I am unable to sustain the above contention. 3. The specific case of the complainant is that the accused borrowed `2 lakhs in two instalments and towards the discharge of the said liability, the accused issued Ext.P1 cheque after its due execution. The trial court in paragraph 9 of its judgment has categorically found that the case of the complainant is that the husband of the accused was present at the time of borrowing the amount, but according to the complainant, the husband of the accused has not executed any promissory note, but it was the accused, who executed the promissory note. According to the learned Magistrate, it is not a believable story. The above observation and finding of the court below, according to me, are correct in the facts and circumstances involved in the case. Whatever may be the nature and requirement of the loan allegedly given, when the husband was present at the time of the transaction, naturally the liability would be CRL.L.PNO.459 of 2012 :-3-: undertaken by the husband. The story of execution of promissory note by the accused is not seen substantiated by the complainant. No promissory note is produced during the trial of the case, for which the explanation of the complainant is that when the cheque was given, the promissory note was returned to the accused. That explanation is also not believable. According to me, if there was such a vital document, the complainant could have at least retained the photo stat copy of the same. So, the alleged transaction is clouded with doubt. 4. Regarding the execution of Ext.P1 cheque also, the evidence of the complainant is not free from doubt. According to PW1, a filled up cheque was brought by the accused and the accused put her signature in front of him. In this juncture, it is relevant to note that the specific contention taken by the accused is to the effect that the husband of the accused borrowed sums of `10,000/- and `15,000/and towards the security of the said transaction, a blank signed cheque of the accused was given. A prudent man will insist for the execution CRL.L.PNO.459 of 2012 :-4-: of the cheque in his presence, if the claim is correct. No explanation is forthcoming from the complainant as to why he received a filled up cheque brought by the accused. So regarding the execution of the cheque, absolutely there is no satisfactory evidence, especially in the backdrop of the defence advanced by the accused and the explanation offered as to how Ext.P1 cheque reached in the hands of the complainant. It is true, though the defence had advanced a case that on two occasions, altogether `25,000/- was borrowed from the complainant by the husband of the accused and the amount was repaid, no evidence is produced by them to prove the same or to probabilise the said version of the defence. According to me, the failure on the part of the defence to prove its case is not a ground to accept the case of the prosecution and to hold that the prosecution/the complainant has proved its case beyond reasonable doubt. 5. From the above discussion, it can be seen that after giving due weight to the entire evidence and materials on record, the learned CRL.L.PNO.459 of 2012 :-5-: Magistrate by assigning convincing reason supported by the materials and evidence on record, came to a conclusion that the case of the accused was more probable and believable that the cheque was issued as security for the amount borrowed by the husband of the accused. The petitioner has no case that the learned Magistrate has overlooked any material or evidence, which is in favour of the complainant to substantiate his case that Ext.P1 cheque was issued towards the discharge of the liability of `2 lakhs. Therefore, according to me, even if an appeal is entertained, there is no scope for any interference with the finding of the court below and the order of acquittal 6. In a recent decision of the Apex Court reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The Apex Court has held:- “ _In cases where there are exceptional compelling circumstances and the judgment under_ CRL.L.PNO.459 of 2012 :-6-: _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, I find that no interference is warranted, even in case an appeal is entertained against the above finding and the order of acquittal and there is no substantial ground to reverse the order of acquittal. Therefore, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. Accordingly, this Criminal Leave Petition is dismissed. sd/- **V.K.MOHANAN, Judge** MBS/ -true copy- P.S.to Judge. CRL.L.PNO.459 of 2012 :-7-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 CRL.L.PNO.459 of 2012 :-8-: O R D E R Dated:2. ..2011