Sree Gokulam Chits & Finance Co. Pvt. Ltd. v. Sathar A. & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934** **Crl.L.P..No. 642 of 2012 ()** **--------------------------AGAINST THE ORDER IN CC.787/2009 of J.M.F.C., KAYAMKULAM, DTD.20.3.2012.** ## **PETITIONER/COMPLAINANT(S):** **----------------------** **SREE GOKULAM CHIT & FINANCE CO. PVT. LTD. SREE GOKULAM TOWERS, NO .66.,ARCOT ROAD CHENNAI-24, REP.BY CHANDRAN PILLAI,AGED 42 YEARS S/O.KOCHU PILLAI, ASST.BUSINESS MANAGER KAYAMKULAM BRANCH, R/A.SREEBHAVANAM, THOTTUVA MURI ANAYADI P.O.,PALLICKAL** **BY ADVS.SRI.K.S.BABU** **SMT.N.SUDHA SRI.BABU SHANKAR** **RESPONDENTS/ACCUSED & STATE:** **--------------------------** ## **1. SATHAR A.** **S/O.ABDUL SALAM, MANATTEL HOUSE, KAPPIL KRISHNAPURAM, PIN CODE-690 533.** ## **2. STATE OF KERALA** **REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM** **BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 03-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.L.P.No.642 of 2012** ## **------------------------------Dated this the 3[rd] 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 20.3.2012 in C.C.No.787 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. The case of the complainant is that, the accused is one of the subscribers of the chitty bearing No. J2E/3730/JMM/05 having sala of `1,00,000/- and though the accused prized the chitty, he failed to repay the chitty amount and on demand, towards the payment of the defaulted amount, the accused issued Ext.P1 cheque for an 2 ## **Crl.L.P.No.642 of 2012** amount of `66,449/-, which when presented for encashment dishonoured for want of sufficient fund and the accused has not repaid the amount, inspite of a statutory notice served on him. Thus according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P8. The trial court finally found that the complainant has failed to establish its case beyond reasonable doubt and also the execution of the cheque in question. Accordingly, the court below held that the accused cannot be said to have issued Ext.P1 cheque to the complainant in discharge of a legally enforceable debt. Consequently, the accused was acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which leave of this Court is required. 3. Heard Smt.N.Sudha, learned counsel for the petitioner and I have perused the judgment which is sought 3 ## **Crl.L.P.No.642 of 2012** to be impugned. 4. Learned counsel for the petitioner, on the basis of the decision of this Court reported in **Justin P. Vs. Sree Gokulam Chits and Finance Co. (P) and another (2012 KHC 2299)** , has submitted that in the present case also, the defence taken by the accused is that the cheque in question was given as security and he has not claimed that he had cleared the liability and therefore in the light of the above decision, the findings of the court below are not correct and the respondent/accused is liable to be convicted for the offence punishable under section 138 of the NI Act. 5. I have carefully considered the arguments advanced by the counsel for the petitioner and I have gone through the judgment sought to be impugned. I have also gone through the decision cited by the counsel for the petitioner. 6. In the present case, the learned Magistrate of the trial court, in paragraph 8 of his judgment, has specifically found that on a perusal of Ext.P1 cheque, it is prima facie 4 ## **Crl.L.P.No.642 of 2012** evident that the author of the signature therein could not be the author of the entries in the cheque and the entries are made using different ink than the ink used for putting signature. It has also found that, when PW1 was confronted with this aspect, he denied having witnessed signing of the cheque as well as writing the same and he was not aware of the author of the entries in the cheque. It is true that in the decision cited supra, this Court has held that, in a chitty transaction, the right and the liability of the subscribers are governed by terms of the contract and when the accused issued blank cheque, he was authorised to fill up the same and release the due amount. It is pertinent to note that the above decision is rendered on a revision petition filed by the accused, challenging the concurrent finding of the trial court as well as the appellate court. In the said decision, this Court in para 6 it has specifically found that, in that particular case, the defence has also no claim that he had deposited the entire liability and further found that the trial 5 ## **Crl.L.P.No.642 of 2012** court as well as the appellate court has concurrently found that the cheque in question was issued by the accused towards the discharge of the liability that due to the complainant out of the chitty transaction and the complainant has adduced its evidence through PW1 and produced Exts.P1 to P7 documents. This Court has also discussed the evidence of the complainant adduced through PW1. But in the present case, the leave petition is filed at the instance of the complainant seeking leave to file an appeal against the order of acquittal recorded by the trial court in favour of the accused. I have already observed that, the learned Magistrate has specifically found that the complainant has miserably failed to prove the execution of the cheque. In this juncture it is relevant to note that the complainant has no case that the accused issued blank cheque authorising the complainant to fill up the same and presented it for encashment. In the absence of any such claim or evidence to that effect, simply because the accused 6 ## **Crl.L.P.No.642 of 2012** has advanced case to the effect that he had handed over blank cheque to the complainant, the same cannot be endorsed to find against the accused to interfere with the order of acquittal recorded by the trial court in favour of him. Going by the judgment of the trial court it appears that the learned Magistrate had refused to act upon the complaint and acquitted the accused by assigning reasons which are supported by materials and evidence on record. If that be so, it cannot be said that the findings of the court below are perverse or illegal, so as to interfere in an appeal and 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 to acquit the accused, especially when the petitioner had failed to show that the judgment of the trial court is perverse or illegal. 7. 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 7 ## **Crl.L.P.No.642 of 2012** 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 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. 8. 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 8 ## **Crl.L.P.No.642 of 2012** 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/