Sree Gokulam Chit & Finance Co. Pvt. Ltd. v. Sajeev G and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934 Crl.L.P..No. 582 of 2012 -----------------------[AGAINST THE JUDGMENT DTD.23.2.2010 IN CC.281/2009 of J.M.F.C.-II (MOBILE),ALAPPUZHA] PETITIONER/COMPLAINANT: ---------------------- M/S.SREE GOKULAM CHIT & FINANCE CO.PVT. LTD, REPRESENTED BY ITS AUTHORIZED AGENT T.R.KRISHNAN KUNJU, S/O.THYAGARAJA PANICKER AGED 38 YEARS, LEGAL CLERK, KOLLAM DIVISION, COMMERCIAL SHOPPING COMPLEX, BISHOP JEROME NAGAR, CHINNAKKADA, KOLLAM. BY ADV. SRI.K.N.VENUGOPALA PANICKER RESPONDENTS/ACCUSED & STATE: ---------------------------- 1. SAJEEV G, S/O.GOPINATHAN MAVILA VEEDU, MIYANNOR P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SAJU.S.A R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 04- 10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 582 of 2012 ---------------------------------------Dated this the 4[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 is one of the subscribers of the chitty conducted by it and the chitty sala was for `1,00,000/- and the accused bid the chitty and obtained the prize money, but, the accused failed to repay the chitty instalments and thus, towards the discharge of the liability, the accused issued Ext.P1 cheque dated 3.11.2007 for an amount of `44,382/-, which when presented for encashment, dishonoured for the reason 'funds ## **CRL.L.P.NO.582 OF 2012** ## **:-2-:** insufficient' and the accused has 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 from the side of the petitioner and Exts.P1 to P7 documents were produced. Though no witness was examined, Ext.D1 passbook was produced from the side of the defence. The trial court, finally, after due consideration of the evidence and materials, found that it is not safe to conclude that the accused issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. On the basis of the above finding, the accused was found not guilty and accordingly, he is acquitted. The above finding and order of acquittal are proposed to be challenged in an appeal for which the petitioner seeks leave of this Court. 3. I have heard Sri.K.N.Venugopala Panicker, learned counsel for the petitioner and I have perused the judgment sought to be impugned. ## **CRL.L.P.NO.582 OF 2012** ## **:-3-:** 4. The learned counsel strenuously submitted that the accused has not disputed the chitty transaction and he has also no claim that he had discharged the liability out of such chitty transaction and he is also admitting his signature in Ext.P1 cheque. But in spite of those facts, according to the learned counsel, the learned Magistrate came into an erroneous conclusion and consequently, acquitted the accused. Therefore, the counsel submitted that in case an appeal is entertained, there is every possibility for interfering with the finding of the court below and to reverse the order of acquittal, recorded in favour of the respondents/accused. 5. In the light of the arguments advanced by the learned counsel for the petitioner and in the light of the finding of the court below in the 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 findings of the court below as per its judgment. 6. The crux of the case of the complainant is that the accused is ## **CRL.L.P.NO.582 OF 2012** ## **:-4-:** one of the subscribers of the chitty conducted by the complainant and towards the discharge of the liability due therein, the accused issued Ext.P1 cheque. According to the accused, after having denied the issuance and execution of cheque, it is his specific case that he issued a blank signed cheque to the complainant when he received the prize money. According to him, even though he repaid the amount covered by the transaction, the cheque was not returned and the present complaint is filed by the complainant by misusing the blank cheque so obtained from him after making false entries therein without his knowledge or consent. From the facts stated in the judgment, it can be seen that the chitty commenced on 3.7.2004 and the accused bid the chitty on 5.12.2004 and the chitty closed on 3.2.2006. Though PW1 was examined, no evidence or material was produced to show the circumstances under which the accused volunteered to execute Ext.P1 cheque which bears the date as 3.11.2007 though the chitty was terminated as early as on 3.2.2006. No convincing or acceptable evidence is brought on record to show that the accused was made **CRL.L.P.NO.582 OF 2012** **:-5-:** aware of the due amount and he was demanded to pay that amount. More over, the learned Magistrate in paragraph 9 of his judgment has found that a perusal of Ext.P1 cheque makes it clear that the signature and the entries in Ext.P1 cheque were made by using different ink. The above facts make the case of the accused more probable that the blank cheque obtained by the complainant from him was misused in the present case. Learned counsel for the petitioner submitted that the complainant is not in a position to adduce evidence with respect to the execution of cheque since the entries in the cheque were made by a person who came along with the accused for the purpose of execution and issuance of the cheque. The above version of PW1 is only a lame excuse to get over the situation, when he was confronted with Ext.P1 cheque, which contains the entries in different ink. The complainant has no case either in the complaint or in the proof affidavit that the entries in the cheque were made other than the accused or a person who came along with the accused. So regarding the execution of the cheque and the circumstances under which Ext.P1 cheque was ## **CRL.L.P.NO.582 OF 2012** ## **:-6-:** allegedly issued by the accused, absolutely there is no evidence and material. If that be so, it cannot be said that the trial court is incorrect in its finding and acquitting the accused. As I indicated earlier, the finding of the learned Magistrate is on the basis of the available evidence and materials and by assigning proper reasons. If that be so, the findings of the court below cannot be treated as a perverse one. 7. In a recent decision of the Apex Court reported in **State of** v. **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.”_ 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 ## **CRL.L.P.NO.582 OF 2012** ## **:-7-:** 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 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.582 OF 2012** **:-8-:** V.K.MOHANAN, J. CRL.L.P.No. OF 20 ## **CRL.L.P.NO.582 OF 2012** ## **:-9-:** O R D E R Dated:2. ..2011 **CRL.L.P.NO.582 OF 2012** **:-10-:** 4. In a recent decision of the Apex Court reported in **State of** v. **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.”_ 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 ## **CRL.L.P.NO.582 OF 2012** ## **:-11-:** 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 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.