IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934
Crl.L.P..No. 640 of 2012 --------------------------CC.155/2009 of J.M.F.C., KAYAMKULAM
PETITIONER/COMPLAINANT.:
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SREE GOKULAM CHIT & FINANCE CO. PVT.LTD., SREE GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENNAI-24, REPRESENTED BY CHANDRAN PILLAI, AGED 44 YEARS, S/O.KOCHU PILLAI, ASST.BUSINESS MANAGER, KAYAMKULAM BRANCH, RESIDING AT SREBHAVANAM, THOTTUVA MURI, ANAYADI P.O., PALLICKAL.
BY ADVS.SRI.K.S.BABU SMT.N.SUDHA
RESPONDENTS/ACCUSED.:
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1. SUNIL KUMAR, NANGARETHU HOUSE, PUTHENCHANTHA P.O. VALLIKUNNAM-690 501.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.
R1 - BY ADV. SRI.R.SUNIL KUMAR R1 - BY ADV. SMT.A.SALINI LAL
R2 - BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 21-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V.K.MOHANAN, J. -----------------------------------Crl.L.P.No.640 of 2012 ------------------------------------Dated this the 21[st] day of November, 2012**
## **ORDER**
The complainant in a prosecution for the offence punishable 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 was one of the subscribers of the chitty No.JZH/0653/JMM/09 of which the sala is a sum of Rupees Five lakhs, at the Kayamkulam Branch of the complainant company and the accused received the prize money and when he failed to repay the chitty instalment, the complainant made demand for the same and
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accordingly the accused issued Ext.P2 cheque, for a sum of `2,81,435/- which, when presented for encashment, dishonoured for want of sufficient fund in the account maintained by the accused and the accused has not paid off the amount in spite of the statutory notice served on him. Thus, according to the complainant the accused has committed the offence punishable under Section 138 of the N.I. Act. After considering the entire evidence and materials, the trial court has found that, it is not safe to conclude that the cheque was written by the accused and the case of the defence that the cheque produced in the case was prepared at the office of the complainant from on the blank instrument obtained by the complainant from the accused has probabilised and further found that the complainant has failed to place on any record or material to convince the court that the cheque amount is actually liable to be paid by the accused. On the basis of the above fact, the trial court has concluded that, the accused cannot be said to have issued Ext.P2 cheque to
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the complainant in discharge of a legally enforceable debt and consequently the accused is found not guilty and he is acquitted under Section 255 (1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which the leave of this Court is sought for.
3. I have heard Mr.K.S.Babu, learned counsel for the petitioner and I have perused the judgment sought to be impugned.
4. The learned counsel for the petitioner vehemently submitted that, the accused has admitted his signature in Ext.P2 cheque and he had no case that he had discharged the liability connected with chitty transaction, though he had admitted such chitty transaction. It is also the submission of the counsel that, the complainant has proved the execution of the cheque and therefore it was for the accused by adducing contra evidence to show that handwriting of the cheque is not of the accused. According to the learned counsel, the trial court went wrong in not considering the above facts and
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acquitting the accused. Therefore, according to the learned counsel, there is every chance for interference with the findings of the court below in case an appeal is entertained. Hence, according to the counsel, the petitioner is entitled to get the leave as prayed for.
5. I have carefully considered the submissions made by the learned counsel for the petitioner and I have gone through the judgment of the trial court carefully.
6. In the light of the arguments advanced by the counsel for the petitioner and in the light of the evidence and materials on record, which are referred to in the judgment and particularly in view of the findings of the court below, the question to be considered is whether the petitioner has made out a prima facie case in support of its challenge against the findings of the court below and further whether the petitioner had succeeded in making out a substantial or compelling reason to interfere with the order of the trial court acquitting the accused. Admittedly, the accused is one of the subscribers of the
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chitty conducted by the complainant. According to the complainant, though the accused has received the prize amount, he defaulted in paying the chitty instalment and finally towards the discharge of the entire amount due, the accused has executed and issued the cheque. Whereas the specific contention taken by the accused is that, while admitting the chitty transaction, according to the accused, he never executed the cheque and issued to the complainant in discharge of an amount of Rupees Two lakhs. According to him, the cheque in question was handed over to the complainant in blank form, then he received the prize amount and the complainant after incorporating the entries in the cheque, without the consent or knowledge of the accused, presented for encashment. According to the accused, the major portion of the liability is discharged and the amount shown in Ext.P2 is not due to be paid to the complainant. It is on the basis of the above rival contention that the court below firstly proceeded to see
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whether Ext.P2 cheque was executed by the accused or not. Towards that enquiry, after physical verification of Ext.P2 cheque, the learned Magistrate has found that the author of the signature in Ext.P2 could not be the author of the entries in the cheque, since the entries are made using ink other than the ink used for putting the signature. The learned Magistrate has further found, when PW.1 confronted with the above facts, he denied having witnessed signing of the cheque as well as writing the same and he is not aware of the author of the entries in the cheque. So, regarding the execution of the cheque, absolutely there is no evidence from the part of the complainant. Therefore, I find no reason to interfere with the finding of the court below that the said fact probabilised the case of the accused that the cheque prepared at the office of the complainant on the blank instrument obtained from the accused. The question of rebutting the presumption under Section 139 of the N.I. Act will arise only when the complainant either proving
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the execution of the cheque or the same admitted by the accused. But in the present case the accused denied the execution of the cheque and the evidences of the complainant are not sufficient to prove that the cheque was executed by the accused in the light of the facts pointed out thereunder.
7. In paragraph 9 of the judgment of the trial court after considering various facts and materials on record, the trial court has found that the complainant has not produced any evidence including any document to establish the exact dues under the chitty account to be discharged by the accused. So on the basis of the above facts, the trial court found that the complainant has failed to establish its case beyond reasonable doubt that the cheque amount is actually liable to be paid by the accused.
8. Thus, on a close scrutiny of the finding of the court below, which are on the basis of the available materials and evidence, it can be seen that the reasoning
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assigned by the learned Magistrate is legal and valid and the same cannot be treated as perverse.
9. 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 that,
“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 case, in the light of above decision, it can be seen that the petitioner has miserably failed to make out a prima facie case in support of its challenge against the judgment of the trial court and its finding. The petitioner has also failed to make out any substantial or compelling reason to interfere with the order of acquittal
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recorded in favour of the accused. Accordingly, I am of the view that the petitioner has failed to make out any case to grant leave as sought for.
In the result, there is no merit in this petition and accordingly the same is dismissed.
## **V.K.MOHANAN, JUDGE**
skj
