IN THE HIGH COURT OF KERALA AT ERNAKULAM
## PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
Crl.L.P..No. 287 of 2012
-----------------------------------(ST.NO. 110/2010 of J.M.F.C.-II,THODUPUZHA)
## PETITIONER/COMPLAINANT:
---------------------------------
SREE GOKULAM CHIT AND FINANCE CO.(P)LTD. 356, ARCOT ROAD, KODAMBAKAM CHENNAI-600024 REPRESENTED BY POWER OF ATTORNEY H OLDER, MR. JOMY S/O. CHACKO, SENIOR BUSINEES MANAGER, BRANCH OFFICE THODUPUZHA.
BY ADVS.SMT.A.SREEKALA SMT.C.R.DIYA
RESPONDENTS/ACCUSED AND STATE:
---------------------------------------------
1. SMT.SUBAIDA, W/O. BASHEER T.K., W/O. BASHEER T.K., THELAMPURAM HOUSE, ALLAPRA P.O. KANDATHARA. PIN 683 553.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
R2 BY ADV. PUBLIC PROSECUTOR SMT. LALIZA T.Y. R1 BY BY ADV. SRI.C.A.NAVAS BY ADV. SRI.P.A.SHAJI SAMAD BY ADV. SMT.C.S.SIMI BY ADV. SRI.T.K.SASIKUMAR
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 10-072012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J.**
**---------------------------------------Crl.L.P No. 287 of 2012 ----------------------------------------** Dated the 10th day of July, 2012
## ORDER
The complainant in a prosecution for the offence punishable 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 judgment dated 22.9.2011 in S.T.No.110 of 2010 of the Judicial First Class Magistrate-II, Thodupusha, by which the learned Magistrate in his complaint, acquitted the accused under section 255(1) of Cr.P.C.
2. The case of the complainant is that the husband of the accused joined a chitty with the Perumbavoor branch of the complainant company for a sala value of Rs.3 lakhs and the chitty was prized for Rs. 2,25,000/- and the amount was paid to the subscriber on 17.4.2008. The subscriber as well as the accused, who is the guarantor of the subscriber, executed all necessary documents in favour of the company.
CRL.L.P.287/12
**:-2-:**
According to the complainant, the subscriber is liable to pay interest @ 18% per annum for the defaulted amount. The subscriber defaulted payment of the subscription and subsequently, the accused issued Ext.P5 cheque dated 16.12.2009, towards the discharge of the above liability, which when presented for encashment, dishonoured for want of sufficient fund in the account of the accused. it is the further case of the complainant that, though lawyer notice was served on the accused, a false reply was sent and no amount was paid. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, PWs 1 and 2 were examined and Exts.P1 to P9 were marked from the side of the prosecution. Though no witness was examined from the side of the defence, Exts. D1 to D3 were marked. After considering the entire evidence and materials on record, the learned Magistrate has held that , the accused has successfully rebutted the presumption and there is no legally enforceable liability to the extent of
CRL.L.P.287/12
**:-3-:**
the amount as mentioned in Ext.P5 from the accused to the complainant, and consequently, the accused is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the petitioner seeks leave of this court under section 378(4) Cr.P.C.
3. I have heard Smt. A Sreekala, the learned counsel appearing for the petitioner and I have also perused the judgment of the trial court which sought to be impugned.
4. The specific case of the complainant is that after termination of the chitty transaction, on 3.6.2009, the accused was demanded to clear the liability and thus the accused approached the complainant on 16.12.2009 and thereafter issued Ext. P5 cheque. Whereas the specific contention raised by the accused is that signed blank cheque was handed over to the complainant at the time of receiving the prize amount and the said cheque is misused by the complainant. It is also the contention of the defence that no such amount shown in Ext.P5 is due to the
CRL.L.P.287/12
**:-4-:**
complainant. The trial court, on appreciation of the evidence of the complainant, it was specifically found that the power of attorney holder of the complainant company, who was examined as PW1 and who filed the proof affidavit, had admitted before the trial court in an unequivocal language that he has no direct knowledge regarding the transaction and the execution and issuance of the cheque. It is true that when PW2, the manager of the company was examined, he had stated in the proof affidavit that he had direct acquaintance with the complainant and the accused signed the cheque in his presence. So the evidence of PW1 is not helpful for the complainant against the accused. Though PW2, the manager of the company claimed that he had seen the accused putting sign in the cheque, in his presence, PW2 has no claim that the accused had filled up the cheque in question in his presence. The learned Magistrate, after having physical verification of Ext.P5 and on comparison of the entries in Ext.P2 and P3, has held that the similarity of the handwriting in Exts.P2 and P3 with the hand writing in
CRL.L.P.287/12
**:-5-:**
Ext.P5 would throw doubt in the case of the complainant. According to me, the above observation and finding of the learned Magistrate is absolutely correct, especially in the light of the defence advanced by the accused. According to the accused, the cheque in question was the one which obtained when her husband received the prized chit amount. It is also relevant to note that no document is produced from the side of the complainant to prove that the accused was demanded to pay an amount of Rs.1,03,080/after the termination of the chit transaction on 3.6.2009. So absolutely there is no evidence to show that the accused was aware of the amount due to the complainant whatsoever.
5. It is also relevant to note that, in paragraph 9 of the judgment, the learned Magistrate has found that the complainant has produced the ledger extract of the disputed account and it was marked as Ext.P4. As per Ext.P4, as on 3.12.2009, the outstanding balance in the account was Rs.89,350/-. PW1 has deposed that the
CRL.L.P.287/12
**:-6-:**
outstanding balance as on that date was Rs. 89,350/-. Ext.P5 is dated 16.12.2009. But the cheque contains, according to the learned Magistrate, a higher amount than covered by Ext.P4. It is also seen from the judgment that there is no datas or materials to show as to how this much amount was arrived, especially when the accused was not made aware of the due amount as per the account of the complainant. Therefore, I find no illegality or doubt regarding the correctness of the finding of the learned Magistrate that the total outstanding amount as on 3.6.2009 was only Rs.97,954/-, but the cheque amount is for Rs.1,03,080/- and non explanation for the difference of Rs.5126/-. It is on the basis of the above difference in the amount, particularly on the basis of the similarity in the hand writing in Exts.P2, P3 and P5, the learned Magistrate has further held that the same would suggest that the defence raised by the accused is probable. According to me, the above reasoning of the learned Magistrate is correct in the light of the facts and circumstances and the evidence
CRL.L.P.287/12
**:-7-:**
on record which are referred to by the learned Magistrate in the judgment. If that be so, even if an appeal entertained, there is no scope for any interference with the above findings of the court below, since the reasons given by the learned Magistrate is supported by the evidence and materials on record. Therefore, the finding cannot be treated as perverse or illegal.
6. In the recent decision in **State of Rajasthan**
**v. Darshan Singh @ Darshan Lal** (2012 (4) Supreme 72), the Apex Court has held that, the jurisdiction of the appellate court to interfere with the order of acquittal is very limited. The 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
CRL.L.P.287/12
**:-8-:**
involved in the present case and the finding of the trial court in the impugned judgment in the light of the dictum laid down by the Apex Court in the decision cited supra, the petitioner has miserably failed to make out exceptional case or compelling reasons so as to interfere with finding and the order of acquittal recorded by the trial court and to hold that the judgment is perverse. Therefore, I find no merit in this appeal.
Accordingly, the same is dismissed.
**V.K.MOHANAN, JUDGE**
**kvm/-**
## CRL.L.P.287/12
**:-9-:**
kvm/-
