Shyne Varghese v. Suja James and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2011-12-21
Court Decision / Holding: Leave petition filed under Section 378(4) Cr.P.C. is dismissed; the acquittal under Section 255(1) Cr.P.C. by the Judicial First Class Magistrate-I, Pathanamthitta, is sustained; no interference with the trial court’s order.
Final Disposition: Leave petition dismissed; acquittal affirmed.

Parties to the Case

Appellants / Petitioners

SHYNE VARGHESE

Respondents

SUJA JAMES
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Anoop (Mulavana)

Counsels for Respondents

• Sri R. Premchand
• Smt A.A. Dilshah
• Smt. Lowsy

Case Synopsis & Summary

This is a Kerala High Court Criminal Leave Petition (CRL.L.P. No.1106 of 2011) arising from a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleges that the accused issued a cheque dated 13 May 2008 for Rs. 3,00,000 in discharge of a legally enforceable debt and that the cheque was dishonoured for “account closed” upon presentation. The case began before the Chief Judicial Magistrate and later proceeded as S.T. 2286/2008 before the Judicial First Class Magistrate-I, Pathanamthitta. During trial, PW1 (the complainant) and PW2 testified and Exts. P1–P6 were marked; the defence did not examine any witnesses, though Ext. D1 (reply notice) was marked. The Magistrate concluded that there was an absence of specific pleadings about the transaction and that there was no reliable evidence to prove the due execution of Ext. P1, applying the principles from Santi.C. v. Mary Sherly, and acquitted the accused under Section 255(1) Cr.P.C. The applicant seeks leave under Section 378(4) Cr.P.C. to appeal. The High Court, after hearing, found that the trial court’s reasoning was not perverse or illegal and dismissed the leave petition, thereby sustaining the acquittal. The bench was presided over by a Single Judge, Justice V.K. Mohanan.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 255(1) Cr.P.C.Section 378(4) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellant contends that there was a legally enforceable debt evidenced by Ext. P1 cheque and that notice under Section 138 NI Act was served. It is urged that the complaint need not plead every minute detail of the transaction and that the absence of such particulars cannot by itself destroy the prosecution’s case if the documentary and oral evidence establishes the transaction. The trial court’s reliance on the principles from Santi.C. v. Mary Sherly is challenged as misapplied. The complainant argues that the evidence on record, including Exts. P1–P6 and the circumstances surrounding the transaction, suffices to prove the execution of the cheque and the debt; the appeal should be entertained to examine these merits.

Contentions of Respondents

Respondents submit that the trial court rightly acquitted because the prosecution failed to plead and prove the transaction in a manner that would establish the due execution of Ext. P1. The absence of specific transactional pleadings and the non-production of a full reply to the statutory notice undermine the prosecution’s case. The defence also points to the civil dispute between PW2 and the accused and to the uncorroborated testimony suggesting unreliability of PW1’s deposition. The court’s application of the lack of transaction particulars and the absence of better evidence justifies acquittal, and the leave petition should be dismissed. The respondents rely on the trial court’s reasoned decision as not perverse or illegal.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Santi.C. v. Mary Sherly and another	2011(3) KHC 22	Positive	The High Court notes that the trial court relied on the principles discussed in this case to find the transaction details lacking, and adopts that framework in sustaining the acquittal.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST DECEMBER, 2011 / 30TH AGRAHAYANA, 1933 Crl.L.P..No. 1106 of 2011 --------------------------------(ST.2286/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PATHANAMTHITTA) .................... APPELLANT/COMPLAINANT: -----------------------------------------SHYNE VARGHESE, S/O.LATE P.M.VARGHESE, AGED 34 YEARS, ALAPPATTU HOUSE, AZHOOR, PATHANAMTHITTA.P.O. BY ADV. SRI.P.ANOOP (MULAVANA) RESPONDENTS(S): -------------------------- 1. SUJA JAMES, AGED 44 YEARS, W/O.JAMES MATHEW, KOORAN HOUSE, PEECHANIKADU, PULIYANAM.P.O., ANGAMALI, ERNAKULAM (SUJA JAMES, D/O.C.V.GEORGE, NACHUPADAM.P.O., KOLENCHERRY - 682 311) 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.PREMCHAND FOR R1 BY ADV. SMT.A.A.DILSHAH FOR R1. R2 BY PUBLIC PRSOECUTOR SMT.LOWSY THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.L.P.No. 1106 of 2011** **----------------------------------------** Dated this the 21[st] day of December, 2011 ## **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 is that the accused had issued a cheque dated 13.5.2008 for an amount of `.3 lakhs towards the discharge of a legally enforceable debt and when the said cheque was presented for encashment, it was dishonoured for the reason of account closed. According to the complainant, in spite of the statutory notice sent to the accused, no amount was paid and therefore, the accused has committed the offence punishable under ## **CRL.L.P.NO.1106 of 2011** ## **:-2-:** Section 138 of the N.I.Act. With the above allegation, by filing a complaint, the complainant approached the Chief Judicial Magistrate Court, Pathanamthitta wherein cognizance was taken and S.T.No.525 of 2008 was instituted. But, subsequently, the case was made over to the court of Judicial First Class Magistrate-I, Pathanamthitta, wherein the case is renumbered as S.T.No.2286 of 2008. During the trial of the case, PWs.1 and 2 were examined from the side of the complainant and Exts.P1 to P6 were marked. From the side of the defence, though no witness was examined, Ext.D1 reply notice is marked. After considering the materials and evidence, the trial court has found that the absence of specific pleadings in the complaint regarding the transaction and non-production of any better evidence rendering light to the transaction squarely makes out circumstance to apply the principles discussed in Santi.C. v. Mary Sherly and another (2011(3) KHC 22) and accordingly, held that the prosecution has miserably failed to prove the due execution of Ext.P1 cheque. On the ## **CRL.L.P.NO.1106 of 2011** ## **:-3-:** basis of the above finding, the learned Magistrate acquitted the accused 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 under Section 378(4) of the Cr.P.C. 3. I have heard Sri.P.Anoop (Mulavana), learned counsel for the petitioner. I have gone through the judgment of the trial court. 4. Out of two prosecution witnesses examined, PW1 is the complainant. The learned Magistrate, after scanning the deposition of PW1, has found that PW1 is not specific about the original transaction and he has no explanation for non-mentioning of the details of transaction either in the complaint or in the chief affidavit. Learned counsel for the petitioner read over to me the deposition of PW1. In spite of the bald statement that there was a transaction with the accused, no particulars or details are given in the deposition of PW1. In this juncture, it is relevant to note that though the complainant has ## **CRL.L.P.NO.1106 of 2011** ## **:-4-:** not produced the reply sent by the accused to the statutory notice, the complainant was fully aware of the plausible contention of the accused. Still then, at the time of filing of the complaint or at the time of giving evidence as PW1, the complainant has miserably failed to plead and prove the transaction effectively and up to the satisfaction of the court. So regarding the execution of Ext.P1 cheque, absolutely there is no evidence. 5. In the present case, it is relevant to note that the accused is a lady and according to PW1/the complainant, the accused was introduced to him by PW2 and on the basis of that, he handed over the money to the accused. The defence has succeeded in making out the fact that civil dispute was pending between PW2 and accused and if that be so, it cannot be believed for a moment that PW2 has introduced the accused to PW1 for availing of loan from PW1. Though PW1 has stated that he was not aware of the default on the part of the accused connected with the transaction between PW2 and ## **CRL.L.P.NO.1106 of 2011** ## **:-5-:** the accused, the same cannot be swallowed without a pinch of salt. So regarding the transaction whatever may be stated by the complainant, is not believable. 6. In the absence of any details regarding the transaction and evidence, I am of the view that the learned Magistrate is fully justified in his finding and acquitting the accused. If that be so, even if an appeal is entertained, there is no scope for any interference, especially when the reason assigned by the learned Magistrate is not perverse or illegal. Therefore, there is no merit in the leave petition and accordingly, the same is dismissed. **V.K.MOHANAN, Judge** MBS/ ## **CRL.L.P.NO.1106 of 2011** **:-6-:** **V.K.MOHANAN, J** . CRL.L.P.No. OF 20 ## **CRL.L.P.NO.1106 of 2011** ## **:-7-:** **==> picture [87 x 17] intentionally omitted <==** Dated:2. ..2011