Shriram Transport Finance Company Ltd. v. State of Kerala and Albert P.B.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 31ST DAY OF OCTOBER 2012/9TH KARTHIKA 1934 Crl.L.P.No. 628 of 2012 --------------------------[AGAINST THE ORDER DTD.21.7.2012 IN ST.134/2010 of THE CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA] PETITIONER/COMPLAINANT: ----------------------- M/S.SHRIRAM TRANSPORT FINANCE COMPANY LTD. ADMINISTRATIVE OFFICE, MOOKAMBIKA COMPLEX, 3RD FLOOR, 4--LADY DESIKA ROAD, MYLAPORE, CHENNAI, HAVING ITS BRANCH OFFICE AT NANDYATHU BUILDING, COLLEGE JUNCTION, PATHANAMTHITTA 689645(REPRESENTED BY ITS BRANCH MANAGER SHILU.J) BY ADVS.SRI.C.HARIKUMAR SMT.C.B.ANUROOPA SRI.VIPIN VARGHESE RESPONDENTS/STATE & ACCUSED: ---------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA 682 031. 2. ALBERT P.B., S/O.PAPPACHAN, LAKSHAMVEEDU, VANCHITHAAMALA, THEKKEMALA P.O., PATHANAMTHITTA 689 645. R1 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 31-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 628 of 2012** **---------------------------------------Dated this the 31[st] day of October, 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. The case of the complainant/company is that they are granting finance to different customers on Hire Purchase Agreement or Loan Agreement and consequent to the vehicle finance availed by the accused, in partial discharge of the legally enforceable debt, the accused had issued Ext.P2 cheque for an amount of `47,796/- which when presented for encashment, dishonoured as there was no sufficient fund in the account of the accused. Thus, according to the CRL.L.P.No.628 of 2012 :-2-: complainant, though a notice was served on the second respondent, the cheque amount was not paid and therefore, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, on behalf of the complainant, PW1 was examined and Exts.P1 to P6 were produced. From the side of the defence, Dws.1 and 2 were examined and produced Exts.D1 to D3. The trial court finally found that the complainant hopelessly failed in proving that the cheque in question was issued towards the discharge of the liability as claimed by the complainant and consequently, it was found that Ext.P2 cheque, although was executed by the accused in blank, was apparently issued as a security document with respect to the loan transaction happened in the year 2007 and consequently, found that the accused is not guilty under Section 138 of N.I.Act and he is acquitted under Section 255(1) of the 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. CRL.L.P.No.628 of 2012 :-3-: 3. Going by the judgment of the trial court and on hearing the counsel for the appellant, it appears that the case of the complainant is that the amount was due from the accused connected with the finance availed of by the accused during the year 2009. Whereas the case of the accused is that during the year 2009, he had no transaction with the complainant and his specific case is that he had availed of loan from the complainant during the year 2007 and towards that transaction, substantial amount was repaid and the cheque in question was given as a security connected with the 2007 transaction. Thus, according to the accused, no such amount as claimed by the complainant is due from him towards the complainant. The learned Magistrate has found that PW1, who was examined on behalf of the complainant, has joined in the Pathanamthitta Branch of the company in 2009 January and as such, he had no direct knowledge regarding the transaction claimed by the complainant. Suffice to say, the complainant has miserably failed to produce any document showing CRL.L.P.No.628 of 2012 :-4-: that the accused had taken hire purchase loan from the company during the year 2009. According to me, the above finding of the learned Magistrate assumes importance in the background of the defence taken by the accused. The entire transaction claimed by the complainant is based upon the loan cum hypothecation agreement executed during the year 2009, which is a vital document which is expected to be in the custody of the complainant. But, the said document is not produced. According to PW1, he is not remembering the hire purchase agreement date and number. On the other hand, the accused by examining Dws.1 and 2 and producing Exts.D1 to D3, succeeded in making out a probable case and thereby, rebutted the presumption available under Section 139 of the N.I.Act in favour of the complainant. The trial court has also found that besides the failure of the complainant to produce the hire purchase loan agreement, the appellant also failed to produce the statement of account showing the amount due from the accused and also connected documents including CRL.L.P.No.628 of 2012 :-5-: the account book, account extract kept by the company. So the available evidence and materials show that the complainant has miserably failed to establish its case against the accused beyond reasonable doubt whereas the defence evidence shows that whatever amount due to the complainant as per 2007 transaction, that was only a very meagre amount and the amount shown in Ext.P2 is not the actual amount due to the complainant. Therefore, according to me, the finding of the court below that the cheque in question is not supported by the consideration mentioned thereon, is absolutely correct since it is already found that Ext.P2 cheque was issued as a security to the transaction that has taken place during the year 2007 and Ext.P2 does not contain the true amount due from the accused. From the above facts and circumstances and the above discussion, it can be seen that the learned Magistrate refused to act upon the case of the complainant by adducing cogent and sufficient reasons. The reasons were supported by the evidence and materials and therefore, cannot be CRL.L.P.No.628 of 2012 :-6-: treated as perverse or illegal so as to interfere with appeal, especially when the trial court acquitted the accused. 4. 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 :- “ _In cases where there are exceptional 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, I find no scope for any interference, even if an appeal is entertained against the above finding and the order of acquittal and there is no substantial or compelling reason to interfere with the order of acquittal recorded by the learned Magistrate or establish that the judgment is perverse. CRL.L.P.No.628 of 2012 :-7-: 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. V.K.MOHANAN, Judge MBS/ CRL.L.P.No.628 of 2012 :-8-: V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 ## CRL.L.P.No.628 of 2012 :-9-: