Sree Gokulam Chit and Finance Co. (P) Ltd. v. Suresh Babu and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934` Crl.L.P..No. 423 of 2012 -----------------------[AGAINST THE JUDGMENT DTD.19.6.2010 IN CC.NO.552/2009 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR] PETITIONER/COMPLAINANT: ---------------------- SREE GOKULAM CHIT AND FINANCE CO. (P) LTD. SREE GOKULAM TOWERS, 66 ARCOT ROAD, KODAMBHAKAM, CHENNAI - 600 024. REPRESENTED BY IT'S BUSINESS MANAGER, M.SASIDHARAN S/O. GOPALAN NAIR, VELLIYATTU HOUSE KODANNUR DESAM. BY ADV. SMT.A.SREEKALA RESPONDENTS/ACCUSED AND STATE: ------------------------------ 1. SURESH BABU S/O. PADMANABHAN, OUSPEDATHIL HOUSE, K PURAM THANALUR, MALAPPURAM DISTRICT, PIN-676505. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.VINAY R1 BY ADV. SMT.NEENU.P.KUMAR R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 423 of 2012** ## **---------------------------------------Dated this the 3[rd] 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 it is a company engaged in financial transaction and conducting chitty and the accused is one of its subscribers. It is the further case of the complainant that the accused had joined in a kuri No.J-2-G-180/09 which commenced from 1.12.2004 and the period of the kuri was 20 months which expired on 1.7.2006. The accused had auctioned the chitty and received the chitty amount. It is the further case of the complainant that when the ## **CRL.L.P.No.423 of 2012** ## **:-2-:** complainant had demanded the accused to repay the defaulted amount, he had issued a cheque dated 11.11.2008 for an amount of `71,181/which when presented for encashment, dishonoured for want of sufficient fund and the accused had not paid the amount, even though a statutory notice was served on him. Thus, 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 and Exts.P1 to P8 documents were marked. No evidence is adduced from the side of the defence. The trial court, after considering the entire evidence and materials, came to a conclusion that PW1 has not succeeded to prove that Ext.P1 was executed and issued by the accused in favour of the complainant towards the discharge of the legally enforceable debt. The actual liability of the accused towards the complainant is not satisfactorily proved by PW1 and it was also found that the case of the defence is more probable. Thus, it is concluded that it is not possible to find that the accused has committed an offence punishable under Section 138 of the N.I.Act and ## **CRL.L.P.No.423 of 2012** ## **:-3-:** accordingly, 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 leave of this Court is sought for. 3. I have heard Sri.A.Sreekala, learned counsel for the petitioner and I have heard Sri.V.Vinay, learned counsel appearing for the first respondent and I have perused the judgment. 4. The learned counsel vehemently submitted that the finding of the court below that no demand was made in paying the chitty instalments is incorrect since the accused himself admitted the payment made by him even after the termination of the chitty and also after launching of the complaint. It is also the submission of the learned counsel that the complainant has produced Ext.P8, which proved the liability of the accused and the issuance of Ext.P1 cheque. According to the counsel, the accused admitted the signature in Ext.P1 and especially, when the accused admitted the chitty transaction, the findings of the court below are not correct and liable to be interfered with. ## **CRL.L.P.No.423 of 2012** **:-4-:** 5. I am unable to sustain the above contentions in the light of the facts and circumstances involved in the present case and in the light of the finding of the court below which is merely based upon the evidence and materials on record. Admittedly, the chitty period commenced from 1.12.2004 and expired on 1.7.2006. Ext.P1 cheque is dated 11.11.2008, after the expiry of two years from the date of the closure of the chitty. Though the complainant has claimed that when the accused defaulted in making the chitty instalment, he was demanded and consequently, the accused executed the cheque, absolutely there is no evidence produced in this regard. The learned Magistrate had ventured to consider above fact in detail as evident from paragraph 9 of the judgment, which is sought to be impugned. The above discussion and the finding thereon, according to me, are factually and legally correct. Ext.P8, according to the learned Magistrate, is not acceptable as legal, since the same is not fully attested by the competent person. The learned Magistrate has also found that Ext.P8 contains no details of the payment effected by the ## **CRL.L.P.No.423 of 2012** **:-5-:** accused. So regarding the liability, absolutely there is no legal and valid evidence from the side of the complainant. It is relevant to note that Ext.P1 cheque is for an amount of `71,181/- but the complainant has miserably failed to convince the court as to how such an amount was arrived as the liability due from the accused after the expiry of the chitty on 1.7.2006. It is also relevant to note that the learned Magistrate has also observed that the entries in Ext.P1 are in different ink. PW1 has no case that he had witnessed the execution of the cheque. No competent witness is produced and examined to prove the execution of the cheque. The above infirmities and lapse on the part of the complainant strengthen the defence taken by the accused that cheque in question is given as a security when he obtained the prize amount. In short, the complainant has miserably failed to convince the court, the exact liability as on the date of Ext.P1 cheque and how the liability as figured in the cheque comes to the tune of `71,181/-. There is also no evidence to show that the accused was made aware of the liability to the tune of `71,181/- as on 11.11.2008 since no ## **CRL.L.P.No.423 of 2012** **:-6-:** evidence is adduced to show the formal demand for issuing such a cheque for such an amount. To prove the execution of the cheque also, absolutely there is no evidence. Thus, going by the judgment of the trial court, it can be seen that the trial court refused to accept the case of the complainant, but opted to accept the case of the defence as more probable. Hence, the findings of the court below are supported by reasoning based upon the evidence and materials on record. Therefore, it cannot be said that the judgment of the trial court or the findings therein are perverse. 5. In a recent decision of the Apex Court reported in **State** ## v. **of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme ## 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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.”_ ## **CRL.L.P.No.423 of 2012** ## **:-7-:** 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, it can be seen that the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one. No substantial reasons are made out to interfere with the order of acquittal recorded in favour of the accused and to disturb the double presumption of innocence bolstered as per the judgment in question. Therefore, I find no ground to grant special leave as prayed for, especially when the petitioner has miserably failed to make out a prima facie case in support of his challenge against the findings and order of acquittal recorded by the trial court. In the result, this Criminal Leave Petition is dismissed. **V.K.MOHANAN, Judge** MBS/ ## **CRL.L.P.No.423 of 2012** **:-8-:** V.K.MOHANAN, J. CRL.L.P.No. OF 20 ## **CRL.L.P.No.423 of 2012** **:-9-:** O R D E R Dated:2. ..2011