Sree Gokulam Chit & Finance Co. Pvt. Ltd. v. Shitta S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934** **Crl.L.P..No. 504 of 2012 () --------------------------AGAINST THE JUDGMENT IN CC.160/2009 of J.M.F.C., KAYAMKULAM, DTD.9.11.2011** **ACCUSED(S)/PETITIONER/COMPLAINANT:** **---------------------------------** **SREE GOKULAM CHIT & FINANCE CO. PVT. LTD. SREE GOKULAM TOWERS, NO. 66, ARCOT ROAD CHENNAI-24, REPRESENTED BY CHANDRAN PILLAI S/O. KOCHU PILLAI, ASST. BUSINESS MANAGER KAYAMKULAM BRANCH, RESIDING AT SREEBHAVANAM THOTTUVA MURI, SOORANAD NORTH VILLAGE.** **BY ADVS.SRI.K.S.BABU SMT.N.SUDHA SRI.BABU SHANKAR** ## **COMPLAINANT(S)/RESPONDENTS/ACCUSED :** **------------------------------------** **1. SHITTA S. D/O. VISWAMBARAN, V.V.FLOUR MILL PUTHUPPALLY NORTH P.O., KAYAMKULAM-690527.** **2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADV. SRI.A.J.VARGHESE FOR R1 BY ADV. SRI.J.JULIAN XAVIER BY ADV. SRI.FIROZ K.ROBIN BY ADV. SRI.JOSE. V.V. BY ADV. PUBLIC PROSECUTOR BY ADV. SRI.S.HYMA, PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.504 of 2012** ## **------------------------------Dated this the 12[th] day of September, 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 9.11.2011 in C.C.No.160 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 Sri.K.S.Babu, learned counsel for the petitioner and Sri.A.J.Varghese learned counsel for the respondent and I have perused the judgment which sought to be impugned. 3. The case of the complainant is that, the accused is a subscriber of chitty conducted by the complainant and 2 ## **Crl.L.P.No.504 of 2012** she received the prized amount, and when there was failure on the part of the accused in remitting the chitty instalments, the complainant demanded back the amounts due, consequently the accused issued Ext.P2 cheque for an amount of `1,93,190/- and when the cheque presented for encashment, the same dishonoured, as there was no sufficient fund in the account maintained by the accused and it is the further case of the complainant that the accused has not paid back the amount covered by the dishonoured cheque, inspite of statutory notice served on her and therefore the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, from the side of the complainant Pws.1 and 2 were examined and Exts.P1 to P8(a) documents were marked. Though no witness is examined from the side of the defence, Ext.D1 was marked. After considering the entire evidence and materials, the trial court has found that the accused cannot be said to have issued Ext.P2 cheque to 3 ## **Crl.L.P.No.504 of 2012** the complainant in discharge of a legally enforceable debt. Consequent to the above findings, the accused is found not guilty and accordingly she is acquitted under section 255(1) of Cr.P.C. It is the above findings and order of acquittal sought to be challenged, for which the petitioner prays for leave of this Court under section 378(4) of Cr.P.C. 4. Learned counsel for the petitioner vehemently submitted that the findings of the court below are incorrect and against the evidence and materials on record, and therefore the findings are liable to be set aside and the order of acquittal is liable to be interfere with. In support of the above contentions, it is pointed out that the accused has not disputed the transaction with the complainant company as well as the execution and issuance of the cheque. The counsel submits that the evidence of Pws.1 and 2 shows that the accused has executed and issued the cheque, and therefore the findings of the court below regarding the execution of the cheque against the 4 ## **Crl.L.P.No.504 of 2012** petitioner/complainant are incorrect. It is also the submission of the learned counsel that the documents produced by the complainant will show the liability of the accused and thus Ext.P2 cheque was issued towards the discharge of the said liability. 5. On the other hand, learned counsel for the respondent submitted that the findings of the court below is based upon the evidence and materials and no interference is warranted. According to the learned counsel, as the trial court's findings are based upon the available evidence, there is no perversity in the findings of the court below and therefore this petition is liable to be dismissed. 6. I have carefully considered the contentions advanced by the learned counsel for the petitioner as well as the respondent and I have perused the judgment sought to be impugned. The crux of the allegation of the complainant is that, the accused being a subscriber of the chitty conducted by the complainant, issued Ext.P2 cheque 5 ## **Crl.L.P.No.504 of 2012** after its due execution, towards the discharge of the liability that arose connected with the chitty transaction. On the other hand, the contention of the accused is that at the time of receiving the prized chitty amount, the complainant has obtained blank cheque from the accused and it is the said cheque misused by the complainant for the purpose of the present case and thus according to the accused, she has not executed Ext.P2 cheque and no amount is due to the complainant as claimed by it. Thus the trial court after considering the evidence and materials, it is specifically found in para 8 of the judgment that, “On a perusal of Ext.P2 cheque, it is prima facie evident that the author of the signature therein could not be the author of the entries in the cheque. The entries are made using different ink than the ink used for putting signature”. The counsel for the petitioner submitted that the above observation of the learned Magistrate is not correct. Both the ink used for the signature as well as for writing the letters, are the same. 6 ## **Crl.L.P.No.504 of 2012** According to me, the above submission of the learned counsel is not supported by any materials and nothing brought to my notice in this regard. The learned Magistrate in the very same para it is stated that, when PW1 was confronted with this aspect, he deposed that the cheque was written by the accused herself. But PW2 admitted the fact that the cheque contains different ink. Therefore, the learned Magistrate is of the opinion that, considering the peculiar feature of the cheque as noted above, it is not safe to conclude that the cheque was written by the accused and the interested testimony of PW1 alone is not sufficient to put the authorship of the entries in the cheque on the accused. According to me, the above findings and observation of the learned Magistrate are based upon the evidence and materials on record. The above findings of the learned Magistrate are relevant in the light of the case put forwarded by the accused, since according to her, Ext.P2 cheque was obtained as a blank one as a security at 7 ## **Crl.L.P.No.504 of 2012** the time of releasing prized chitty amount. The above case of the accused probabilised by the evidence on record, since there is no acceptable evidence from the part of the complainant, particularly when the evidence of Pws.1 and 2 contradict each other regarding the ink used for endorsements made in the cheque and for putting the signature. Therefore, the above findings and observation of the learned Magistrate appear to be correct, that too after appreciation of the evidence on record. Moreover, no document is produced by the complainant to show that the accused was made aware of the liability connected with the chitty transaction and she was demanded to clear the same. So in the absence of any proper and acceptable evidence to show that the accused was made aware of the due amount and she was demanded for discharge of that liability, according to me, it cannot be believed that the accused volunteered to execute and issue Ext.P2 cheque and that too when the endorsements in Ext.P2 cheque are made with 8 ## **Crl.L.P.No.504 of 2012** two different ink. Suffice to say that, the petitioner has no case that the learned Magistrate has overlooked any other evidence and materials which are in favour of the complainant. 7. It is also relevant to note that in para 9 of the judgment, the learned Magistrate after perusal of the documents produced by the complainant it is specifically observed that, as per the statement ie., Ext.P8(a), the balance amount outstanding in the account of the accused as on 22.12.2008 is `1,87,018/- but Ext.P2 cheque dated 4.12.2008 is for `1,93,190/- and the complainant has not explained the reason why such a disparity kept in the cheque as well as in Ext.P8(a) statement. Therefore, according to the learned Magistrate, it is then evident that the datas in Ext.P8(a) will not support the case of the complainant with regard to the consideration under Ext.P2 cheque. Yet in para 10 of the judgment, the learned Magistrate has also found that as per Ext.D1 receipt, the 9 ## **Crl.L.P.No.504 of 2012** accused has repaid a sum of `20,000/- on 1.1.2009. PW1 has also admitted the issuance of Ext.D1 from the complainant company, though PW2 had disputed the same. But the learned Magistrate found that PW2 never disputed the veracity of the document, when she was confronted with the same and it was marked through her. Thus it is on the basis of the above materials and evidences, the trial court has found that the complainant has failed to establish its case beyond reasonable doubt. 8. From the above discussion and the evidence and materials referred to above as seen from the judgment sought to be impugned, it can be seen that the evidence of the learned Magistrate is supported by the evidence and materials on record. The petitioner has no case that the learned Magistrate has over looked any evidence or materials which are in favour of the complainant. If that be so, even if an appeal is entertained, there is not even a remote scope to interfere with the findings of the court 10 ## **Crl.L.P.No.504 of 2012** below. In the 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.” On examination of the case in hand, in the light of the above dictum, according to me, the petitioner has miserably failed to make out a prima facie case in support of its challenge against the findings of the court below and the order of acquittal recorded. As the petitioner has miserably failed to show that the judgment sought to be impugned is a perverse one and the petitioner in the present case has miserably failed to make out exceptional cases or 11 ## **Crl.L.P.No.504 of 2012** compelling reasons to interfere with the order of acquittal recorded in favour of the accused, by which the presumption of innocence of the accused is reinforced, there is no scope for any interference. Therefore, I find no merit in this petition. Accordingly, the same is dismissed. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge