Southern Motor Finance Muvattupuzha v. Baby K.V. and State of Kerala (Crl.L.P. No. 374 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 10TH DAY OF NOVEMBER 2014/19TH KARTHIKA, 1936** ## **Crl.L.P..No. 374 of 2014 ()** **---------------------------AGAINST THE JUDGMENT IN CC 177/2005 of J.M.F.C.-I MUVATUPUZHA DATED 16-10-2009** ## **PETITIONER(S)/COMPLAINANT:-:** **------------------------------------------------------** **SOUTHERN MOTOR FINANCE MUVATTUPUZHA REPRESENTED BY THE MANAGING PARTNER K.P.PAUL.** **BY ADV. SRI.T.RAJESH** ## **RESPONDENT(S)/ACCUSED:-:** **------------------------------------------------** ## **1. BABY K.V.** ## **KOZHUVAKANADATHIL HOUSE, VANNAPURAM P.O., THODUPUZHA.** ## **2. STATE OF KERALA,** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY ADV. SRI.M.TRIPTEN R2 BY PUBLIC PROSECUTOR SMT.R.REMA** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 10-112014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ================== ## Crl.L.P.No.374 of 2014 ================== Dated this the 10[th] day of November, 2014 O R D E R This petition has been filed by the complainant in C.C.No. 177/2005 on the file of the Judicial First Class Magistrate's Court, Muvattupuzha, seeking leave under Section 378 of the Cr.P.C. for instituting appeal to impugn the judgment dated 6.10.2009 rendered in C.C.No.177/2005 by the above said Magistrate court. The petitioner/complainant's case is that on account of the amount due to the complainant firm, the accused had issued cheque dated 21.8.2004 for an amount of Rs.1,50,000/- drawn in his account maintained in the Idukki District Co-operative Bank, Kaliyar branch, and that the cheque was dishonoured, on presentation, due to insufficiency of funds and that after completing the requisite procedural formalities, the complainant firm had instituted the private criminal complaint for the offence under Sec. 138 of the Negotiable Instruments Act against the accused (R1 herein). The above said private criminal compliant was numbered as C.C.No. Crl.L.P.374/14 - : 2 :- 177/2005 by the Magistrate court concerned and the learned Magistrate as per the impugned judgment rendered on 6.10.2009 has, after trial, found that the accused is not guilty of the offence under Section 138 of the Negotiable Instruments Act and accordingly, acquitted him under Section 255(1) Cr.P.C., etc. This Leave Petition has been filed seeking leave to prefer appeal to impugn the above said judgment of the court below. On the vital point raised for consideration by the court below as to whether the accused had issued the cheque to the complainant in discharge of an existing liability, the court below found that the complainant has not succeeded in proving that the execution and issuance of Ext.P4 cheque by the accused to discharge any liability and therefore, the presumption under Sections 139 and 118 of the Negotiable Instruments Act are not attracted in favour of the complainant. In view of this crucial finding, the court below has decided against the complainant and held that the accused is not guilty of the offence under Sec. 138 of the Negotiable Instruments Act. 2. The specific case of the complainant firm for alleging the liability of the accused is stated to be one on the basis of Ext.P-3 hire purchase agreement said to have been entered into on Crl.L.P.374/14 - : 3 :- 17.11.2003 between the complainant and the accused's son, one Binil K.Baby and that the accused was one of the guarantors in that hire purchase agreement, etc. Whereas the specific contention projected by the accused was that there was no such hire purchase transaction on 17.11.2003 and that the transaction between the complainant firm and the accused's son was earlier entered into on 29.6.2001, in which, the accused was a guarantor and in that process, some of the blank signed cheques of the accused and his son as well as two signed blank stamp papers were also given to the complainant firm. That Rs. 1,10,000/- was availed as loan in the said transaction entered on 29.6.2001 from the complainant firm and that an amount of Rs.1,20,555/- was remitted in respect of that transaction to the complainant firm on 15.11.2003 in respect of the vehicle (lorry), which was purchased on the basis of that loan, etc. It is the specific case of the accused that the vehicle in question was seized by the Circle Inspector of Police, Kaliyar Police Station, on 15.11.2003 as per the order of the Judicial First Class Magistrate's Court-I, Thodupuzha and that during the period from 15.11.2003 the vehicle was in the custody of the Kaliyar Police Station. It has come out in clear evidence before the court below that the DW-1 Crl.L.P.374/14 - : 4 :- was examined on his defence, who is one of the witnesses of Ext.P-3 hire purchase agreement said to have been entered into on 17.11.2003 and in her evidence, DW-1 has categorically denied her signature in Ext.P-3 (Ext.D-5) and according to her, she had never gone to the complainant firm and affixed her signature in the hire purchase agreement as alleged by the complainant. DW-2, who is another witness examined by the defence, is the second guarantor in Ext.P-3 agreement and he happened to be the driver of the accused and he has clearly deposed before the court below that it was only on 29.6.2001 that he had gone to the complainant firm along with the accused, who has given signed blank stamp papers and according to DW-2, he had gone to the complainant firm only once, viz. on 29.6.2001, and he has denied the execution of Ext.P-3 hire purchase agreement, which is said to have been allegedly executed on 17.11.2003. The accused himself had entered the box and tendered evidence as DW-4 before the court and he has given his version of the transaction in this case that the transaction occurred only in the year 2001 as stated above with respect to vehicle (lorry) bearing registration No.KL-6745 and has categorically denied the second hire purchase agreement (Ext.P-3) alleged to Crl.L.P.374/14 - : 5 :- have been alleged on 17.11.2003. The accused has produced records before the court below, which reveal that on 15.7.2003 the above said vehicle bearing registration No.KL-6745 was seized by the Kaliyar Police and was in the custody of that Police on 17.11.2003, viz., the date of alleged execution of Ext.P-3 hire purchase agreement. The specific case of the complainant is that they had submitted the vehicle as security only after verifying the same and it is thereafter that they had executed Ext.P-3 agreement on 17.11.2003. Since the vehicle in question was seized as early as on 15.11.2003 by the Kaliyar Police, the court below easily came to the irresistible conclusion that the version projected by the complainant about the veracity of Ext.P-3 agreement as having been arrived at on 17.11.2003, is absolutely unbelievable and lack any credence whatsoever. Added to this, the aforementioned crucial witnesses, DW-1 as well as DW-2 have also given evidence, which has categorically belied the version of the complainant. On the other hand, their evidence gives credence to the version of the accused that there was no hire purchase agreement dated 17.11.2003 as alleged by the complainant and that there was only one hire purchase transaction in this case, which was entered into as early as Crl.L.P.374/14 - : 6 :- on 29.6.2001. In this view of the matter, the court below came to the conclusion that the case projected by the complainant regarding the alleged liability of the accused, cannot be believed and accordingly, it was held by the court below that the complainant could not succeed in proving the execution and issuance of Ext.P-4 cheque by the accused for discharge of any liability and thus held that the presumptions under Secs. 139 and 118 of the Negotiable Instruments Act are not attracted in this case in favour of the complainant. The aforementioned findings of the court below cannot be said to be unreasonable or perverse. On the other hand, they are logical and reasonable and could be the only reasonable conclusion that could arrived at by a criminal court. In the case State of Rajasthan v. Darshan Singh @ Darshan Lal reported in 2012(4) Supreme 72, the 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.” Further, in the case Pudhu Raja and another Vs. State reported in [(2013) 1 SCC (Cri) 430], the Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are Crl.L.P.374/14 - : 7 :- compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. 3. On an examination of the aforementioned facts and circumstances involved in this case and on an appreciation of the evidence adduced before the court below and the impugned findings rendered by the court below, this Court is of the considered opinion that even if appeal is entertained, there is very little scope of any interference with the conclusive findings of the court below, which led to the acquittal in the impugned judgment. Accordingly, this Court is constrained to hold that the Leave Petition is bereft of any merit and accordingly, the same is dismissed. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge Crl.L.P.374/14 - : 8 :- sdk+ ALEXANDER THOMAS, JUDGE