Sree Gokulam Chits and Finance Co.(P)Ltd v. M.P. Viswanathan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 20TH AUGUST, 2011 / 29TH SRAVANA, 1933 Crl.L.P..No. 760 of 2011 -----------------------------(AGAINST JUDGMENT DATED 14.7.2010 IN ST.1419/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II(MOBILE), KOZHIKODE ) .................... PETITIONER/COMPLAINANT: ------------------------------------------- SREE GOKULAM CHITS AND FINANCE CO.(P)LTD GOKULAM TOWERS, NO.66, ARCOT ROAD, CHENNAI, REP. BY ITS LEGAL ASSISTANT, K.V. SAVITHA, W/O.K.V. THYAGARAJ, AGED 31, DIVISIONAL OFFICER, TECHNO TOP BUILDINGS, VAIKOM MUHAMMED BASHEER ROAD, KOZHIKODE. BY ADV. SRI.RAJ MOHAN R.PILLAI RESPONDENTS(S): ------------------------- 1. M.P. VISWANATHAN, S/O. RAMUTTY, MANAL POONIGAL HOUSE, KOLATHARA.P.O, KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.SHAJI THOMAS FOR R1 BY ADV. SRI.BINU PAUL FOR R1 BY PUBLIC PROSECUTOR FOR R2 SRI.P.A.SALIM. THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 20/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.L.P.No. 760 of 2011** **----------------------------------------** Dated this the 20[th] day of August, 2011 ## **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 joined in a chit No.G2 E 1928/19 through Kallai Branch of the complainant/company, the company which is engaged in a chitty business. For discharging his liability in connection with the chitty transaction, the accused issued a cheque dated 12.2.2008 for Rs.62,700/- which when presented for encashment was dishonoured as there was no sufficient fund in the account maintained by the CRL.L.P.NO.760 of 2011 :-2-: accused and thereafter, the complainant, though issued a statutory notice to the accused, the accused has not repaid the amount in spite of the receipt of the notice and thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act and with the said allegation, by filing a complaint, the complainant approached the Judicial First Class Magistrate Court-II (Mobile), Kozhikode whereupon cognizance was taken for the said offence and instituted S.T.No.1419 of 2010. During the trial of the case, PW1 was examined for and on behalf of the complainant and produced Exts.P1 to P8 documents. From the side of the defence, the accused himself was mounted to the box and deposed as DW1 and produced Ext.D1 chitty pass book as defence exhibit. On the basis of the available materials and evidence, the trial court has held that the complainant has not succeeded in proving the fact that the accused has executed Ext.P3 cheque for Rs.62,700/- on 12.2.2008 and handed over the same to the complainant to discharge his liability towards the complainant. It is the above finding and order of acquittal sought to CRL.L.P.NO.760 of 2011 :-3-: be challenged by way of filing an appeal for which the complainant seeks special leave of this Court under Section 378(4) of the Cr.P.C. 3. I have heard Sri.Raj Mohan.R.Pillai, learned counsel appearing for the petitioner as well as Sri.Shaji Thomas, learned counsel appearing for the first respondent/accused. 4. The learned Magistrate of the trial court in his elaborate judgment considered the entire evidence and materials in detail and the learned Magistrate refused to accept Ext.P8 document produced by the complainant which is the account pertaining to the chitty transaction between the complainant and the accused. The learned Magistrate has assigned so many reasons in not accepting Ext.P8 as the genuine and proper account. Besides the above, the learned Magistrate has also considered the claim of the complainant that the accused had executed Ext.P3 cheque and issued the same towards the discharge of the liability as claimed by the complainant. In paragraphs 21 to 23, the learned Magistrate has considered all the facts and circumstances and the evidence connected with the said CRL.L.P.NO.760 of 2011 :-4-: issue and came to a conclusion that the case of the defence that the cheque in question is the one, which was obtained by the complainant in advance, misutilised by the complainant for the purpose of filing the present case, is accepted as more probable. It is, on the basis of the above factual finding, the learned magistrate came to the findings under point Nos.1 and 2. 5. The learned counsel for the revision petitioner vehemently submitted that the finding of the court below with respect to Ext.P8 is factually incorrect and the learned Magistrate refused to accept the version of the complainant regarding the payment of dividend amount of Rs.7000/- to the accused in cash. Learned counsel further submitted that the accused has accepted his signature that contained in Ext.P3 and therefore, virtually the execution and issuance of cheque was also accepted by the accused and therefore, the findings of the learned Magistrate with respect to the execution and issuance of the cheque against the complainant and in favour of the accused are not factually and legally correct and in support of the above submission, CRL.L.P.NO.760 of 2011 :-5-: the learned counsel placed reliance upon the decision of the Apex Court in **Rangappa** v. **Mohan** [2010 (2) KLT 682 (SC)]. 6. Sri.Shaji Thomas, counsel appearing for the respondents strenuously submitted that the finding arrived on by the learned Magistrate is purely on facts and such a finding was arrived based upon the materials and evidence on record and there is no dispute or fact remained to be settled. In order to substantiate the above submission of the learned counsel, he invited my attention to paragraphs 16 and 17 of the judgment of the trial court. After having invited my attention to the observation and the findings of the learned Magistrate that contained in paragraphs 21 to 23, the learned counsel submitted that the finding of the learned Magistrate that the case of the defence is more probable, is correct and the evidence and materials referred to by the learned Magistrate justify his conclusion. 7. In the light of the rival arguments advanced by the counsel for the complainant as well as the defence and the materials and evidence referred to by the learned magistrate and his findings, the CRL.L.P.NO.760 of 2011 :-6-: question to be considered is whether the petitioner has made out a case to grant special leave to file an appeal against the judgment of the trial court, acquitting the accused under Section 255(1) of Cr.P.C. 8. The crux of the allegation of the complainant against the accused is that towards the discharge of the liability, the accused had drawn a cheque for Rs.62,700/-, which according to the complainant, is arising out of the chitty transaction between the complainant and the accused, and the accused, after its due execution, issued the same in favour of the complainant. It can be seen that in order to substantiate the above contention and claim of the complainant, the complainant mainly depends upon the evidence of PW1 and the documentary evidence Exts.P1 to P8. Ext.P1 is the extract from the minutes dated 13.8.2007, Ext.P2 is the chitty agreement dated 27.12.2004, Exts.P3 and P4 are the cheque in question and the dishonour memo. Exts.P5 to P7 are the documents connected with the statutory demand. It is only Ext.P8 that is produced by the complainant to prove the liability, claimed by the complainant against CRL.L.P.NO.760 of 2011 :-7-: the accused. The trial court, after considering the evidence of PW1 and documentary evidence Ext.P8 and the evidence of DW1 and Ext.D1 document, has observed in paragraph 16 which runs as follows:- “ _16. In order to ascertain the genuinity of Ext.P8 document produced from the side of the complainant I have verified the same with the facts noted in Ext.D1. It has come to my notice that as per Ext.P8 complainant has allowed a dividend of Rs.7000/- to the accused. As per Ext.P8 the last remittance made by the accused was a sum of Rs.500/- in the month of December 2005. But on verification of Ext.D1, I noticed that a total sum of Rs.6500/- was remitted by the accused in December 2005. Thereafter in the month of January 2007 he remitted Rs.2250/- as per Ext.D1. The handwriting and initial of the person who collected the amount from the accused as seen in Ext.D1 appears to be one and same. No doubt is raised from the side of the complainant challenging the reliability of Ext.D1 pass book._ ” The same is also considered in detail in paragraph 17 which runs as follows:- “ _As per Ext.P8, the accused had remitted only Rs.46850/- till 10 December 2005. Apart from the above an amount of Rs.7000/- credited to the account of the complainant as dividend. Thus as per Ext.P8, only a total sum of Rs.53850/was seen paid by the accused. Whereas Ext.D1 shows that a total sum of Rs.65750/- was remitted by the accused. Even the_ CRL.L.P.NO.760 of 2011 :-8-: _receipt numbers and date of collection were mentioned in Ext.D1. It means there is a difference of Rs.11900/- in the account of remittance made by the accused. It appears that the amount of Rs.2250/- remitted by the accused in the month of January 2006 through Ext.D1 pass book was not credited in the account as per Ext.P8. So also in the month of December 2005, as per Ext.D1, accused has remitted a total sum of Rs.6500/- but only Rs.500/- was seen credited as per Ext.P8. In the month of November 2005, as per Ext.D1, accused had remitted a sum of Rs.2300/- but only a sum of Rs.1900/- was seen credited in the account of accused as per Ext.P8. As mentioned above at any point of time even at the time of argument no doubt was arised from the side of the complainant about the genuinty of Ext.D1 passbook. So it can be held that there is every probability to accept the contention raised by the accused that Ext.P8 is not at all a genuine one._ ” So after considering the materials and evidence, the trial court has found that during the month of December 2005, as per Ext.P8, the amount deposited by the accused is shown as Rs.500/- whereas as per Ext.D1, the complainant has accepted the remittance of Rs.6500/- by the accused during the month of December 2005. Thus, during the month of December 2005, the complainant has omitted to record the receipt of Rs.6000/- from the accused in Ext.P8 account. Similarly, the learned Magistrate has also found that as per Ext.P8, the complainant has admitted that the accused has remitted a total sum of CRL.L.P.NO.760 of 2011 :-9-: Rs.46,850/- till 10.12.2005. It is also observed by the learned Magistrate that the accused is entitled to get credit of Rs.7000/towards the dividend. But, as per Ext.P8, only a total sum of Rs.53,850/- was recorded as paid by the accused. But in Ext.D1 pass book, the complainant has endorsed that the accused has remitted a total sum of Rs.65,750/-. Thus, the learned Magistrate has specifically found that there is a difference of Rs.11,900/-. The learned Magistrate has also found that a sum of Rs.2250/- remitted by the accused in the month of January 2006 as evidenced by Ext.D1 pass book was not given credit to as per Ext.P8 account. It is on the basis of the above discrepancies, omissions and contradictions in Ext.P8, the learned Magistrate came to a conclusion that Ext.P8 is not genuine and correct account and accepted the version of the accused. 9. The specific case taken by the defence is to the effect that at the time of receiving the chitty prized amount, the complainant obtained blank cheque leaves from him and it is one of such cheque leaves misused by the complainant for the purpose of filing the CRL.L.P.NO.760 of 2011 :-10-: present complaint. The learned Magistrate, after considering the materials and evidence and the attendant circumstances, opted to accept the version given by the accused since the same is more probable. Though the complainant has claimed that the chitty transaction was through Kallayi Branch, at the time of the evidence, it is claimed that the accused came to the Regional Office, Calicut and after firstly ascertaining the amount in due, subsequently came and issued Ext.P3 cheque. The learned Magistrate, who got the privilege of observing the demeanour of the parties including PW1 and the accused, has specifically found that the accused is a rustic village man, who does not know English whereas Ext.P3 is written in English language and the same has no familiarity or similarity in the handwriting that contained in the 313 statement of the accused. It is on the basis of the above evidence and materials, the trial court concluded that the explanation as to how Ext.P3 cheque reached in the possession of the complainant is more probable. So, according to me, the finding arrived on by the trial court is fully justified in the CRL.L.P.NO.760 of 2011 :-11-: light of the facts and circumstances, especially in the evidence and materials referred to by the learned Magistrate. Therefore, even if an appeal is entertained, there is no scope for any interference with the findings arrived on by the learned Magistrate and as such, there is no compelling or substantial reason to interfere with the order of acquittal recorded by the trial court by disturbing the double presumption of innocence available in favour of the accused by the order of acquittal recorded by the learned Magistrate. Thus, the petitioner has miserably failed to make out a prima facie case to grant leave to file appeal under Section 378(4) of the Cr.P.C. In the result, there is no merit in the above leave petition and the special leave under Section 378(4) of Cr.P.C. is declined and accordingly, this Criminal Leave Petition is dismissed. **V.K.MOHANAN, Judge** MBS/ CRL.L.P.NO.760 of 2011 :-12-: