Sree Gokulam Chit and Finance Co. (P) Ltd. v. Mohammed Ali Shihab and State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933** **Crl.L.P..No. 793 of 2011()** **--------------------------** **CC.537/2009 of J.M.F.C., KODUNGALLUR** **....................** ## **PETITIONER/COMPLAINANT** **------------------------------------------** **SREE GOKULAM CHIT AND FINANCE CO.(P)LTD. GOKULAM TOWERS NO.66,ARCOT ROAD,CHENNAI, REPRESENTED BY MURALIDHARAN.K.V,S/O.VIJAYAN,49 YRS KOLLAMPARAMBIL HOUSE,PULLUT.P.O,KODUNGALLUR, DY.MANAGER,KODUNGALLUR BRANCH.** **BY ADV. SRI.V.T.RAGHUNATH SMT.C.V.RAJALAKSHMI** **RESPONDENT(S): ACCUSED AND STATE** **--------------------------------** **1. MOHAMMED ALI SHIHAB, S/O ABDUL RAHMAN, AGED 27 YEARS,PANICKERPALLIYIL HOUSE, PATTAMBI.P.O,PALAKKAD-679303.** **2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA-682031.** **ADV. SRI.M.SHAJU PURUSHOTHAMAN FOR R1 SRI.K.S.RAJESH FOR R1** **R2 BY PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **V.K.MOHANAN, J.** **---------------------------------------Crl.LP. No. 793 of 2011 ----------------------------------------** Dated the 31st day of August, 2011 ## **ORDER** 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 Cr.P.C. 2. The complainant is a company engaged in the chitty business and according to the complainant, the accused was one of its subscribers in kuri No.J2G 774/18 and the kuri period expired on 16.9.2008. But there was default in the repayment of the amount and when the complainant demanded the amount with interest , the accused issued cheque dated 6.10.2008 for a sum of Rs.1,48,670/-, which cheque when presented for encashment, dishonoured and no amount was paid in spite of the statutory notice and therefore, according the complainant, the accused has committed the offence punishable under section Crl.L.P.793/11 2 138 of the NI Act. With the above allegation, the complainant approached the court of Chief Judicial Magistrate, Thrissur and cognizance was taken, but subsequently, the case was made over to the present trial court wherein the case is renumbered as C.C.No.537 of 2009. During the trial of the case, PW1 was examined for and on behalf of the complainant and Exts.P1 to P8 documents were produced from the side of the complainant. From the side of the defence, DW1 was examined and produced Exts.D1 to D3. Finally, the trial court has found that the accused has paid a sum of Rs.20,000/- on 13.10.2008, i.e., after 7 days from the date of Ext.P2 cheque, and the trial court came into a conclusion that Ext.P2 cheque is not for a legally enforceable debt and in support of the above finding , the learned Magistrate has relied upon the decision of this Court reported in **Joseph Sartho v. Gopinathan Nair** (2008(4) KLT 509). It is the above finding and the consequential order of acquittal sought to be challenged by filing appeal for which the leave of this court sought for. 3. I have heard Sri.V.T.Reghunath, the learned counsel appearing for the petitioner and Sri Shaju Purushhaman the Crl.L.P.793/11 3 earned counsel appearing for the Ist respondent. I have also perused the judgment of the trial court. 4. Counsel for the petitioner vehemently submitted that by giving some amount, after the issuance of the cheque in question, any accused can be relieved from the charge of offence under section 138 of the NI Act and therefore, the finding of the learned Magistrate is not correct and the decision reported in 2008(4) KLT 509 is not applicable in the present case. On the other hand, the Counsel appearing for the Ist respondent submitted that the amount figured in Ext.P2 is not representing the actual liability if any. it is also the submission of the learned counsel for the Ist respondent that no endorsement was made in Ext.P2 cheque showing the receipt for Rs.20,000/- so as to reduce the liability shown in the cheque. 5. In the light of the above rival contentions and the findings of the learned Magistrate, especially in the light of the materials and evidence referred to by the learned Magistrate in the impugned judgment, the question to be considered is whether the petitioner has succeeded in making out a case so as to grant leave under section 378(4) Cr.P.C Crl.L.P.793/11 4 6. From the facts and circumstances involved the case and the evidence and materials referred to by the learned Magistrate and from the arguments advanced by the learned Counsel for the petitioner as well as the Ist respondent, it can be seen that regarding the transaction between the accused and the complainant, there is no dispute. It is also relevant to note that though the Ist respondent accused took a contention before the trial court that he had not received the chitty amount, the learned Magistrate has specifically found that the above pleading of the accused is not correct, and in order to come into such a conclusion, the learned Magistrate has assigned his own reason. But the evidence on record would show, particularly Exts.D1 and Ext.D2 pas book, and Ext.D3 receipt dated 13.10.2008 and the evidence of DW1, shows that the accused had deposited an amount Rs.20,000/- on 13.10.2008 whereas Ext.P2 cheque is dated 6.10.2008, that too for an amount of Rs.1,48,670/-. The case of the complainant is that the accused issued Ext.P2 cheque towards the discharge of the liability of Rs.1,48,670/- , the amount due to the complainant out of the chitty transaction between the complainant and the accused. It is evident from Crl.L.P.793/11 5 Ext.D2 that the kuri has already expired on 16.9.2008, which was commenced on 16.2.2007. Exst.P8 is the ledger account connected with the chitty transaction. In the decision relied on by the learned Magistrate i.e. 2008 (4) KLT 509, this Court has held that, if a portion of the amount covered by the cheque was repaid, the whole amount of debt or liability was lesser than the amount represented by the cheque and, so, the cheque for such an amount was dishonoured, the same will not be an offence under section 138 of the Act. It is on the basis of the above dictum laid down by this court, the learned Magistrate has further found that considering Ext.D2 and D3 and the evidence of DW1, the stand of the accused is sustainable and the complainant company has not deducted the amount, from the amount covered by the cheque in question. Thus the trial court has further found that the complainant has instituted the case for for more amount than accused is liable to be paid to the complainant and hence, the accused is not liable for the offence punishable under section 138 of the NI Act. In the light of the above decision of this court and in view of the evidence covered by the contemporary documents like Exts.D1 and D2 Crl.L.P.793/11 6 and the evidence of DW1, I am of the view that the learned Magistrate is fully justified in his finding and therefore, even if the appeal is entertained, there is no scope for any interference with the above finding and to reverse the order of acquittal. Therefore the petitioner has miserably failed to make out a case to grant leave under section 378(4) Cr.P.C. In the result, there is no merit in the leave petition and accordingly, declining the special leave under section 378(4) of Cr.P.C, this petition is dismissed. ## **kvm/-** **V.K.MOHANAN, JUDGE** ## Crl.L.P.793/11 7