Sree Gokulam Chit & Finance Co. Pvt. Ltd. v. Shaileesh & State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** **Crl.L.P..No. 574 of 2012 ()** **--------------------------AGAINST THE ORDER IN CC.38/2011 of J.M.F.C. - II, MAVELIKKARA, DTD.24.1.2012** **PETITIONER(S)/COMPLAINANT:** **--------------------------** **M/S.SREE GOKULAM CHIT & FINANCE CO.PVT.LTD., SREE GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENNAI-24, REPRESENTED BY KRISHNAN KUNJU, AGED 42 YEARS, S/O.THYAGARAJA PANICKER, LEGAL CLERK, M/S.SREE GOKULAM CHIT & FINANCE CO.(P) LTD., KAYAMKULAM BRANCH.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA** **COMPLAINANT(S):** **---------------** **1.SHAILESH, S/O.RAVEENDRAN, SHAILESH BHAVAN, PUTHUPPALLYKUNNAM, CHARUMMOODU P.O-690 505, NOORANADU VILLAGE.** **2.STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADV. SRI.S.SHANAVAS KHAN SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.574 of 2012** **------------------------------Dated this the 17[th] day of December, 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 24.1.2012 in C.C.No.38 of 2011 of the court of the Judicial First Class Magistrate-II, Mavelikara, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C. 2. The case of the petitioner/complainant is that it is a company doing chitty business all over India and it has got a branch at Kayamkulam and the accused was a subscriber in chitty no.J3E/1781/JMM/12 for `1 lakh, for the period from 28.4.2008 to 28.4.2010. It is the further case of the complainant that, the accused defaulted in paying the 2 ## **Crl.L.P.No.574 of 2012** chitty instalment and thus on demand, the accused came to the branch office and after verifying the records from the Branch office and ascertaining amount due including the interest, the accused executed and issued Ext.P1 cheque dated 6.11.2010 for an amount of `78,727/- and when the said cheque presented for encashment, the same dishonoured for want of sufficient fund in the account of the accused. It is the further case of the complainant that, though it has demanded back the money from the accused by serving a statutory notice, no amount was paid. 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 from the side of the prosecution and Exts.P1 to P7 were produced. No evidence either oral or documentary produced from the side of the defence. After considering the entire evidence and materials on record, the trial court, while answering to the first issue, which was framed by it, has found that Ext.P1 cheque was not drawn by the accused in favour of the 3 ## **Crl.L.P.No.574 of 2012** complainant in discharge of a legally enforceable debt, as alleged by the complainant. Accordingly, the accused was found not guilty. Consequently, he was acquitted under section 255(1) of Cr.P.C. It is mainly the above finding and order of acquittal sought to be challenged, for which leave of this Court is sought for. 3. I have heard Smt.N.Sudha learned counsel for the petitioner and Sri.S.Shanavas Khan for the first respondent and Smt.S.Hyma learned Public Prosecutor for the State. 4. Learned counsel for the petitioner vehemently submitted that, the evidence of Pws.1 and 2 would show that the cheque in question was executed by the accused and issued in favour of the complainant, and therefore the trial court ought to have held that the complainant has succeeded in proving the execution of the cheque. But the learned Magistrate found on the above point against the complainant on flimsy ground and according to the learned counsel, in the light of the decision reported in **Gopakumar P. Vs. B.Anil Kumar & anr. (2011(2) KLD 455)** and in 4 ## **Crl.L.P.No.574 of 2012** **Lillykutty Vs. Lawrance (2003(3) KLT 721)** , the findings of the court below are liable to be set aside and in case an appeal is entertained, there is every possibility to interfere with the above finding and order of acquittal recorded. It is also the contention of the learned counsel that the finding of the court below, regarding the authority of Pws.1 and 2 to represent the company, is also in correct and illegal. Hence, according to the counsel, the petitioner is entitled to get the relief as sought for. 5. On the other hand, learned counsel for the respondent submitted that the findings of the court below, under point no.1 with respect to the execution of the cheque and the authority of Pws.1 and 2, are based upon the available evidence and materials on record, and are supported by reasonings on the basis of the said evidence and hence the petitioner has failed to make out any case to interfere with the order of acquittal. 6. I have carefully considered the contentions advanced by the counsel for the petitioner as well as the 5 ## **Crl.L.P.No.574 of 2012** respondent and I have perused the judgment sought to be impugned for which leave of this Court is sought for. 7. The case of the complainant is very simple and specific that the accused was one of the subscribers of the chitty conducted by the complainant through its Kayamkulam branch and though the accused received the prized amount, had committed default in paying the chitty instalment and when demanded for clearance of the arrears, the accused volunteered and came to the branch office of the complainant company and after verification of the records and ascertaining the due amount, executed and issued Ext.P1. Whereas, while admitting the chitty transaction, the specific case of the accused is that at the time of availing the prized chitty amount, the complainant obtained blank cheques signed by him and it is one of such blank cheques, mis-utilised for filing the present complaint. Thus, according to the accused, no amount is due to the complainant from him connected with the chitty transaction, and he never executed and issued Ext.P1 6 ## **Crl.L.P.No.574 of 2012** cheque as claimed by the complainant. It is on the basis of the above rival contentions, the learned Magistrate of the trial court framed four issues for its consideration, among which, the first issue was whether Ext.P1 cheque was drawn by the accused in discharge of an existing debt or liability as alleged by the complainant. 8. The trial court has specifically found that to prove the liability of the accused, the complainant very much relied upon the evidence of Pws.1 and 2 and the documents, mainly Ext.P6. The trial court has found that during the cross examination of PW1, he had deposed that one week ago, the accused came to the branch office and he filled up the cheque in the presence of PW1. It has also found that, PW1 denied the suggestion that all the entries in Ext.P1 cheque, except the signature was not that of the accused. But he admitted that the accused paid `28,000/-. The learned Magistrate on physical verification of Ext.P1 cheque has found that, the same was issued in favour of Sree Gokulam Chitty and Finance Company Private Limited, but 7 ## **Crl.L.P.No.574 of 2012** it has found that the signature and all other entries in the cheque are in different inks. It has also found that the chitty number and name of the accused had been written using a pencil on the back side of Ext.P1. As this Court has called for the relevant records, I have also got occasion to physically verify Ext.P1 cheque. On such perusal, I find that the finding of the learned Magistrate is absolutely correct with respect to the two inks that had used in Ext.P1 cheque and also with respect to the entries on the rear side of the cheque. So, PW1 was reluctant to admit the physical evidence before the court and tried to set up a false case. It is also relevant to note that though PW1 has claimed that, on demand, the accused approached the branch office of the complainant and verified the records and after the same, executed and issued the cheque in question, no contemporary document is produced to substantiate those claim. Therefore, the claim of the complainant and Pws.1 and 2 that, the accused came to the branch office prior to the execution of the cheque and verified the records and 8 ## **Crl.L.P.No.574 of 2012** ascertained the due amount, appears to be unsupported by any contemporary document or evidence and such an interested version is given to fill up the lacuna on the side of the prosecution. So the circumstances under which Ext.P1 cheque was happened to be executed by the accused, as claimed by the complainant, is not proved to the satisfaction of the court. As rightly held by this Court in the decision reported in **Gopakumar P. Vs. B.Anil Kumar & anr. (2011(2) KLD 455)** , “The rigour of proof that is required to prove the execution even where there is denial by the maker depends upon the facts and circumstances involved in each case.” In the present case, the facts stated above would show that the complainant is a company engaged in chitty business and the accused is one of its subscribers. Therefore, to prove the liability and execution and issuance of the cheque, the evidence must be clear and cogent, and supported by contemporary documents, since the transaction, as claimed by the complainant, is not a simple hand loan transaction between two individuals. No 9 ## **Crl.L.P.No.574 of 2012** explanation in the present case is forthcoming from the part of the complainant for the presence of two different inks in Ext.P1 cheque to fill the same. If the case of the complainant that, accused came to the branch office at Kayamkulam of the complainant company and executed the cheque and issued the same to the complainant, are true, there was no necessity to use different inks or pens to fill up such instrument. The complainant-PW1 has no case that the cheque was written by somebody else in his presence and signed by the accused, or, the accused has brought up a filled up cheque and put his signature in his presence. In the absence of any such circumstances or facts, it is unbelievable the case of the complainant that the accused volunteered to come to the branch office of the complainant company and drawn the cheque by using different pens or inks. So, the findings of the court below, regarding the execution of the cheque, against the complainant are supported by materials and evidence on record. 9. It is also relevant to note the fact that, cheque in 10 ## **Crl.L.P.No.574 of 2012** question was drawn in the name of the complainant company, who is the payee, as rightly observed by the learned Magistrate. No document is produced in the present case to prove the authority of the person, who represents the complainant to file the complaint and to give evidence. When the payee is a company, it was for the company to prove, by adducing evidence, that the person who represents the complainant company is duly authorised to represent it. But in the present case, no such evidence is produced. Therefore, the finding of the learned Magistrate that Pws.1 and 2 has no authority to represent the payee company, is correct. It is also found by the learned Magistrate that, “Ext.P6 copy of the account which was tentatively marked, is a computer print-out and is not attested as per the Information and Technology Act”. Therefore, to prove the liability of the accused, there is no convincing and contemporary documentary evidence. Thus, going by the judgment of the trial court it can be seen that the findings of the court below are based upon the available 11 ## **Crl.L.P.No.574 of 2012** evidence and materials on record and therefore it cannot be treated as perverse or illegal, so as to interfere in an appeal against the order of acquittal recorded in favour of the accused. If that be so, even if an appeal is entertained, according to me, there is not even a remote scope to interfere with the findings of the court below and the order of acquittal recorded in favour of the accused, especially when the petitioner had failed to show that the judgment of the trial court is perverse or illegal. 10. 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 12 ## **Crl.L.P.No.574 of 2012** 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 presumption of innocence bolstered as per the judgment in question. 11. 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 as the same is devoid of any merit. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge