Sree Gokulam Chit & Finance Co. Pvt. Ltd. v Nazar S/o Abdul Rehman Kunju and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 7TH DAY OF NOVEMBER 2012/16TH KARTHIKA 1934** **Crl.L.P..No. 557 of 2012 ()** **--------------------------AGAINST THE ORDER IN CC.75/2009 of J.M.F.C., KAYAMKULAM, DTD.23.11.2011** ## **ACCUSED(S)/COMPLAINANT:** **----------------------** **SREE GOKULAM CHIT & FINANCE CO.PVT.LTD. REPRESENTED BY ITS AUTHORIZED AGENT T.R. KRISHNAN KUNJU S/O. THYAGARAJA PANICKER, LEGAL CLERK KOLLAM DIVISION, COMMERCIAL SHOPPING COMPLEX BISHOP JEROME NAGAR, CHINNAKKADA, KOLLAM.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** ## **COMPLAINANT(S)/ACCUSED :** **------------------------** **1. NAZAR S/O. ABDUL REHUMAN KUNJU, ZEENAS, PERINGALA KAYAMKULAM-690559.** **2. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SRI.A.K.ABDUL AZEEZ FOR R1** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 07-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.557 of 2012** **------------------------------Dated this the 7[th] day of November, 2012.** ## **O R D E R** The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 23.11.2011 in C.C.No.75 of 2009 of the court of the Judicial First Class Magistrate-Kayamkulam, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. Heard Smt.N.Sudha, learned counsel for the petitioner and I have perused the judgment which sought to be impugned. 3. The case of the complainant is that the accused subscribed chitty bearing no.J2G/88/04 for a sum of `3 lakhs conducted by the complainant company and he 2 ## **Crl.L.P.No.557 of 2012** received the prize money and executed a promissory note agreeing to repay the amount due as per schedule. As the accused had failed to repay the chitty amount and committed default, the complainant demanded back the dues and the accused issued Ext.P1 cheque dated 18.10.2006, which when presented for encashment, dishonoured due to want of sufficient fund in the account of the accused. It is the further case of the complainant that though a statutory notice was served on the accused, the accused failed to repay the cheque amount within the statutory period and therefore 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 produced Exts.P1 to P7 from the side of the prosecution. From the side of the defence, DW1-the accused himself was examined and produced Exts.D1 and D2. Finally, the trial court has found that the prosecution has failed to establish its case beyond reasonable doubt and hence the accused cannot be said to have issued Ext.P1 cheque to the 3 ## **Crl.L.P.No.557 of 2012** complainant in discharge of a legally enforceable debt. It is the above finding of the court below and order of acquittal that are sought to be challenged for which leave of this Court is sought for. 4. Learned counsel for the petitioner vehemently submitted that the complainant has succeeded in proving the execution and issuance of the cheque, and the accused has failed to prove that the entries made in the cheque were not that of the accused. It is also the submission of the learned counsel that the trial court went wrong in its finding against the complainant, on the basis of the fact that some payments were made by the accused after the execution of the cheque, but no payment was made by the accused after Ext.P4 demand notice. Thus, according to the learned counsel, the trial court is not justified in its finding that the complainant has not established its case beyond reasonable doubt and the consequent acquittal of the accused. 5. In the light of the arguments advanced by the 4 ## **Crl.L.P.No.557 of 2012** counsel for the petitioner and in the light of the evidence and materials available on record, which are referred to by the learned Magistrate in his judgment sought to be impugned, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the finding of the court below and also against the order of acquittal recorded in favour of the accused. Going by the judgment of the trial court, it can be seen that as pointed out by the counsel for the petitioner that the accused has not denied the transaction, namely with respect to the chitty transaction and the accused has also no case that he has discharged the liability. 6. The specific contention raised by the accused is that he had received `2.25 lakhs towards prize money of the chitty and at the time of receipt of the said money, the complainant obtained three signed blank cheques and a signed white paper styled as promissory note. The accused has also denied the execution of Ext.P1 cheque in its 5 ## **Crl.L.P.No.557 of 2012** present form and it was the case advanced by the accused that on getting notice from Alappuzha office of the complainant company, he approached the Branch Manager, who advised him to repay the amount and thereafter he was making payment in piecemeal manner. Thus, the learned Magistrate of the trial court considered the entire evidence and materials on record. As the execution of the cheque is disputed, the learned Magistrate has observed that the primary duty is cast upon the complainant to establish the execution of the cheque. According to the learned Magistrate, though both Pws.1 and 2 had asserted that the entries in Ext.P1 cheque were written by the accused himself, on a perusal of the cheque it appears to him that, the ink used for putting the signature is slightly different from the ink used for making the entries in the cheque. But that fact alone was not taken by the learned Magistrate in support of his findings against the petitioner/complainant. Therefore, the learned Magistrate proceeded to examine the other evidence and materials available on record. In 6 ## **Crl.L.P.No.557 of 2012** paragraph 10 of the judgment, the learned Magistrate has found that, since the complainant company is engaged in the chitty business, the complainant company is expected to have maintained proper registers and accounts relating to the transaction with its customers, but no such material is placed before the court to examine whether the amount shown in Ext.P1 was due to the accused on the date shown in the cheque. The trial court has also found that, on a perusal of Ext.D1 series and Ext.D2, which were marked through PW1, it could be noted that the accused was making payment in his account, though irregularly, even after 18.10.2006, ie., the date shown in the cheque. It is also found that the entries up to 17.1.2007 in Ext.D2 are seen verified by the office of the complainant company and that fact is also admitted by PW1. The learned Magistrate has also found that Ext.D1 series of cash receipts indicate that the accused made payment on various dates in January and February 2007. So the learned Magistrate concluded that the accused effected payment in his account even after 7 ## **Crl.L.P.No.557 of 2012** the alleged date of issuance of Ext.P1 cheque. In the complaint, which is dated 2.2.2007, according to the learned Magistrate, there is absolutely no mention of the payment made by the accused subsequent to issuance of Ext.P1 cheque in the complaint as well as in the proof affidavit filed by PW1. Thus on comparison of the evidence and materials, it can be seen that when the complainant has miserably failed to produce the documents to prove the amount actually due from the accused, the accused has produced certain documents, which are also admitted by the complainant, would further show that the accused has made certain payments but those payments do not find a place in the complaint and in the proof affidavit. Therefore, from the above discussion it can be seen that the complainant has miserably failed to prove the execution of the cheque beyond reasonable doubt and also failed to prove the amount actually due from the accused to the complainant. It is on the basis of the above facts and circumstances, the learned Magistrate has found that the 8 ## **Crl.L.P.No.557 of 2012** complainant has miserably failed to prove his allegation against the accused beyond reasonable doubt. According to me, the above findings are absolutely correct and are supported by the materials and evidence on record. Therefore, the same cannot be treated as perverse and consequently the judgment sought to be impugned cannot be treated as a perverse one. 7. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble 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.” 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 9 ## **Crl.L.P.No.557 of 2012** 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 presumption of innocence bolstered as per the judgment in question. 8. Therefore, I find no reason to grant special leave as prayed for, especially when the petitioner 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. Sd/- **V.K.MOHANAN, JUDGE.** ami/- //True copy// P.A. to Judge