Sree Gokulam Chit and Finance Co. (P) Ltd v. Krishnankutty V.A and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 19TH DAY OF OCTOBER, 2012/27TH ASWINA 1934 Crl.L.P..No. 598 of 2012 -----------------------[AGAINST THE ORDER DTD.29.3.2011 IN STC.NO.935/2008 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT -II,PALAKKAD] PETITIONER/COMPLAINANT: ----------------------- SREE GOKULAM CHIT AND FINANCE CO.(P) LTD THERADAPUZHA BUILDING, OPPOSITE TOWN RAILWAY STATION, R.S. ROAD PALAKKAD REPRESENTED BY ITS LEGAL CLERK K.K. SUBASH KUMAR, S.O. KRISHNAN, LEGAL CLERK PULINELLI, KOTTAYI. BY ADV. SMT.A.SREEKALA RESPONDENTS/ACCUSED AND STATE: ------------------------------ 1. KRISHNANKUTTY.V.A 40/08, S.O. ACHUTHAN, UNNIAMPATH HOUSE EZHAKKAD, PALAKKAD-678001. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.U.BALAGANGADHARAN R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 19-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 598 of 2012** **---------------------------------------Dated this the 19[th] 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 is that the accused was a subscriber of chitty bearing No.J2E/486/JMM with ticket No.11 and towards the discharge of the liability, the accused issued Ext.P1 cheque dated 15.1.2008 for an amount of `53,195/- and when the said cheque was presented for encashment, the same dishonoured for want of sufficient fund in the account of the accused and the accused has not repaid the said amount in spite of statutory notice served on him. ## CRL.L.P.NO.598 of 2012 :-2-: Therefore, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P8. Though no witness was examined from the side of the defence, Ext.D1 passbook was marked. Finally, the trial court has held that Ext.P1 cheque is not supported by consideration to the extent shown therein and accordingly found that the accused has rebutted the presumption raised under Section 139 of the N.I.Act. Consequently, the accused is acquitted under Section 255 (1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which the petitioner seeks leave of this Court. 3. The learned counsel for the petitioner submitted that the execution of cheque has been proved and therefore, the trial court ought not have entered into the finding with respect to the liability of the accused and consideration as such. It is the further submission of the learned counsel that all the payments made by the accused were entered in Ext.P8 ledger and the amount shown in Ext.P1 cheque was CRL.L.P.NO.598 of 2012 :-3-: calculated without considering the dividend since the accused was not entitled for the same as he was a defaulter. So, according to the learned counsel, Ext.P8 would show the liability of the accused whereas the counsel for the respondent submitted that the evidence of PW1 himself probabilise the case of the accused and he had miserably failed to give an account as to how an amount of `53,195/- is shown in Ext.P1 cheque as the amount due to the complainant. Therefore, according to the learned counsel, the trial court is fully justified in its finding that the cheque is not supported by consideration to the extent shown therein. 4. I have carefully considered the arguments advanced by him. Learned counsel for the respondent made available to me a copy of the deposition of PW1. It is relevant to note that the learned Magistrate after considering the deposition of PW1 particularly in page No.6 of its deposition, found that the accused has already paid a sum of `67,000/- and if that be so, the amount due to the complainant will be `51,195/-, but the cheque amount is `53,195/-. In the deposition of CRL.L.P.NO.598 of 2012 :-4-: PW1, during his cross-examination after inviting his attention to Ext.P8, he has stated as follows:- “Ext.P8-ല 53195 തര�ന�ണ� എന� ക�ണ�ല. ച�ക�ല�ചത വ�ച� വരഖകള�ല 53195 ക�ട�ന�ണ� എന� ക�ണ�ല.” He had also deposed that “ Ext.D1 പ�ക�ര� divident അടക� 67,000/- ര � പ�ത� അടച�ട�ണ�.” The above deposition of PW1 shows that the amount shown in Ext.P1 cheque is not correct and the said amount is actually not due to the complainant. Therefore, the finding of the court below that the cheque amount is not actually due to the complainant and Ext.P1 cheque is not supported by the consideration to the extent shown therein is correct and the learned Magistrate is fully justified in the backdrops of the above evidence, especially the admission of PW1. Therefore, it cannot be said that the finding of the court below is perverse or illegal. 5. In a recent decision of the Apex Court reported in **State of** v. **Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), CRL.L.P.NO.598 of 2012 :-5-: ## the Hon'ble Apex Court has held:- “ _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.”_ 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 to show that the judgment is perverse. 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.598 of 2012 :-6-: V.K.MOHANAN, J. CRL.L.P.NO.598 of 2012 :-7-: CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011