State of Kerala v. K.K. Abdul Rehiman and Noor Muhammed

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934** ## **Crl.L.P..No. 593 of 2012 ()** **--------------------------AGAINST THE ORDER IN ST.1725/2010 of J.M.F.C.,TIRUR, DTD.4.7.2012** **ACCUSED(S)/COMPLAINANT:-:** **------------------------** **K.K. ABDUL REHIMAN, S/O.ASSAINAR, KAKKIDIKKADAVATH HOUSE B.P.ANGADI (PO), PARASSERI, TIRUR - 676 102 MALAPPURAM DISTRICT.** **BY ADV. SRI.JAMSHEED HAFIZ** ## **COMPLAINANT(S)/ACCUSED:-:** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.** **2. NOOR MUHAMMED, S/O.MUHAMMED KUTTY, PARAYIL HOUSE, TIRUR P.O. 676 101, NEAR KANATH PUZHA, MALAPPURAM DISTRICT.** **BY SMT.LALIZA T.Y., PUBLIC PROSECUTOR** **THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.L.P.No.593 of 2012 ------------------------------Dated this the 9[th] day of October, 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 4.7.2012 in S.T.No.1725 of 2010 of the court of the Judicial First Class Magistrate-I, Tirur, 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 issued Ext.P1 cheque dated 16.5.2010 for `1½ lakhs towards the repayment of the money borrowed by him from the complainant and when the said cheque presented for encashment, dishonoured for the reason 'account closed' and the accused has not repaid the amount inspite of the 2 ## **Crl.L.P.No.593 of 2012** 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, the complainant himself was examined as PW1 and produced Exts.P1 to P5 documents. The trial court after considering the entire evidence and materials has specifically found that the case of the complainant, that the accused borrowed money through him and issued Ext.P1 cheque in discharge of the liability, has not proved and consequently held that the accused is not guilty and hence 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 leave of this Court is sought for. 3. I have heard Adv.Sri.Jamsheed Hafiz learned counsel for the petitioner and I have perused the judgment sought to be impugned. 4. Learned counsel for the petitioner vehemently submitted that the accused has admitted his signature in 3 ## **Crl.L.P.No.593 of 2012** Ext.P1 cheque and also the issuance of the cheque and hence the complainant is entitled to get a presumption but the learned Magistrate has failed to extend that benefit in favour of the complainant. It is also the submission of the learned counsel that though the accused had admitted the signature and issuance of the cheque, he has not established his defence about the transaction, that is giving of the cheque as security connected with the employment under the complainant. Thus according to the counsel, the learned Magistrate is wrong in acquitting the accused. Learned counsel has strenuously submitted that, though in the complaint and in the proof affidavit the complainant has stated about the issuance of the cheque, when the complainant was examined as PW1, he had deposed before the court that he is not remembering the fact as to who had made the entries in the cheque, which evidence cannot be isolated from the entire evidence of the complainant so as to come to the conclusion that the complainant has failed to 4 ## **Crl.L.P.No.593 of 2012** prove the execution. Therefore, the counsel submits that in case an appeal is entertained, there is every possibility of interference with the findings of the court below and for reversing the order of acquittal. 5. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have carefully gone through the judgment of the trial court. In the light of the argument advanced and in view of the findings of the court below based upon the evidence and materials referred to in the judgment sought to be impugned, the question that emerges for consideration is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the judgment in question. The specific case of the complainant is that towards the discharge of liability of `1½ lakhs that due to the complainant from the accused, the accused had issued Ext.P1 cheque. Whereas the defence of the accused is that the complainant had misused the cheque of the accused, 5 ## **Crl.L.P.No.593 of 2012** which was given as security while he was working in the shop of PW1 and he had also disputed the liability alleged by the complainant. Learned counsel read out to me the proof affidavit filed by the complainant in the present case. Except a mere statement to the effect that the accused had given a dated cheque, no details of the execution is stated in the proof affidavit. The learned Magistrate in paragraph 7 of his judgment has stated that, PW1 could not say as to when the cheque was issued by the accused and he had also deposed that the amount and the name of the payee written in the cheque are in a hand writing different from the hand writing of the accused. The learned Magistrate has further found that PW1 has not deposed as to who had written the entries in the cheque. It is also found that the case of PW1 is that, Ext.P1 cheque was issued to repay the amount borrowed but the learned Magistrate has further found that PW1 has no case that he had obtained any security from the accused while giving such a huge amount. The learned 6 ## **Crl.L.P.No.593 of 2012** Magistrate has also observed that PW1 has no case that his relationship with the accused was so close that he would give a huge amount to the accused, who was only a worker under him, without receiving any security. So the available evidence of PW1 is not sufficient to hold that the complainant has succeeded in proving the execution of the cheque in question. 6. As pointed out by the learned counsel, beside PW1, PW2 was also examined. But the learned Magistrate has found that the name of PW2 has not been mentioned in the complaint. It is also observed that, “though PW2 has stated that the accused borrowed the money to repay his debt, PW2 does not know how the complainant raised the money and PW2 does not know where the house of the accused is”. So regarding the execution of the cheque, absolutely there is no acceptable and convincing evidence. It is also relevant to note that in paragraph 9 of the judgment, the learned Magistrate has specifically found that the complainant has 7 ## **Crl.L.P.No.593 of 2012** not given the evidence as to who had written the entries in the cheque and also found that, admittedly there is difference in the hand writing in the entries in the cheque. It is on the basis of the above finding and observation, the learned Magistrate refused to accept the case of the complainant and thus acquitted the accused. Thus going by the judgment it can be seen that, after assigning convincing and good reasons, that too based upon the available evidence and materials, the learned Magistrate has refused to accept the case of the complainant and found in favour of the accused. Hence it cannot be said that the findings of the learned Magistrate or the judgment in question are perverse. The petitioner has no case that the learned Magistrate has over looked any evidence or materials on record, which are sufficient to prove the execution of the cheque. 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 to acquit 8 ## **Crl.L.P.No.593 of 2012** 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 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 9 ## **Crl.L.P.No.593 of 2012** 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 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