Venugopalan Nair v. Karivattom S. Sasikumar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 13TH DAY OF DECEMBER 2012/22ND AGRAHAYANA 1934 Crl.L.P..No. 704 of 2012 ------------------------[AGAINST THE JUDGMENT DTD.30.6.2012 IN ST.NO.554/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,TRIVANDRUM] PETITIONER/COMPLAINANT : ------------------------ VENUGOPALAN NAIR S/O. M.SANKARA PILLAI, PERINGOTTUVILA VEEDU KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM-43. BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER RESPONDENTS/ACCUSED AND STATE : ------------------------------- 1. KARIVATTOM S. SASIKUMAR S/O.SUKUMARAN NAIR, PRA 163, NAGEROKAVU TEMPLE ROAD POOJAPPURA, THIRUVANANTHAPURAM-15. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR OFFICE OF THE ADVOCATE GENERAL HIGH COURT BUILDING, ERNAKULAM. R1 BY ADV. SMT.MAJIDA.S R1 BY ADV. SRI.AJIKHAN.M R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.L.P.No. 704 of 2012 ---------------------------------------Dated this the 13[th] day of December, 2012** ## **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. Learned counsel for the petitioner vehemently submitted that the accused has admitted his signature in Ext.P1 cheque and there is no denial at all. It is also the submission of the learned counsel that the accused has no consistent case as to how the cheque belonging to the account maintained by the accused reached in the hands of the complainant. According to the counsel, in spite of those facts, the learned Magistrate of the trial court came to an erroneous conclusion, ## **Crl.L.P.No.704 of 2012** ## **:-2-:** based upon totally irrelevant facts that the complainant was bankrupt at the time of the transaction and therefore, there was no transaction as claimed by the complainant. Hence, the counsel submitted that there is every scope to interfere with the finding of the court below in case an appeal is entertained for which the petitioner is entitled to get leave as prayed for. 3. I have carefully considered the submission made by learned counsel for the petitioner and I have gone through the judgment of the trial court, which is sought to be impugned. 4. The specific case of the complainant is that the accused borrowed `3 lakhs from the complainant and issued Ext.P1 cheque towards the discharge of the said liability and when the said cheque was presented for encashment, the same was dishonoured for want of sufficient fund in the account of the accused and the accused has not repaid the amount covered by the dishonoured cheque in spite of statutory notice. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I.Act. ## **Crl.L.P.No.704 of 2012** ## **:-3-:** During the trial, the complainant himself was examined as PW1 and produced Exts.P1 to P6. One witness was examined from the side of the defence, but no document is produced. As I indicated earlier, the learned Magistrate refused to accept the case of the complainant, since the complainant has no capacity at the relevant point of time to lend `3 lakhs to the accused and the complainant has failed to prove the drawal of the cheque. In paragraph 9, the learned Magistrate has specifically found that even according to the complainant, the amount was paid to the accused on 25.11.2005, but the cheque was issued only on 13.2.2007 and the complaint was filed immediately after getting the cheque. On the basis of the admission of the complainant, when he was examined as PW1, the learned Magistrate has found that during the month of November 2005, he was having only an amount of `5000/- as balance in his account. It is also found that during the month of October and November,2005, the complainant was facing attachment from Kerala Financial Corporation for `9 lakhs and he was on the verge of attachment of his wife's property. According to PW1, ## **Crl.L.P.No.704 of 2012** ## **:-4-:** in the attachment notice, it is stipulated that he should clear the debt to the KFC within one month. From the above facts, it is crystal clear that during the alleged transaction of giving loan to the accused, the complainant was facing recovery proceedings at the instance of KFC since `9 lakhs was due to it from the complainant. It is also borne out from the deposition of PW1 that during the month of November, 2005, he took a loan from the Kerala Automobiles Limited Cooperative Society to show that he had paid `3 lakhs to the accused. According to him, he took a loan of rupees one lakh from the said society and obtained `2,25,000/- from his co-brother and these amounts were together lent to the accused, after taking `25,000/- for his personal needs. The learned Magistrate has also found that the testimony of DW1, the Assistant Manager (Marketing) in charge of Information Officer of Kerala Automobiles Ltd. Co-operative Society also shows that the complainant is yet to receive his pension benefits because he is facing recovery from bank. It is on the basis of the above admitted facts and evidence, the learned Magistrate has found ## **Crl.L.P.No.704 of 2012** ## **:-5-:** that the testimony of PW1 itself caused serious doubts regarding his capacity to lend `3 lakhs to the accused. So, according to me, the learned Magistrate is perfect in his finding that a person in dearth of money and who faces imminent danger of attachment of the property from his creditor, cannot be believed to have lent `3 lakhs at a time when attachment steps are pending against him. So, according to the learned Magistrate, the probability of the complainant advancing a sum of `3 lakhs to the accused without getting any documentary proof is not correct. On the other hand, the learned Magistrate was prepared to accept the case of the defence version that the cheque was clandestinely procured by the complainant with the help of the then wife of the accused, which is the consistent case of the accused right from issuing the reply to the statutory notice of the complainant. Thus, on an examination of the findings of the court below and the materials and evidence referred to in the judgment in support of the above finding, it can be seen that there is no perversity or illegality in such finding of the court below so as to interfere with the said finding ## **Crl.L.P.No.704 of 2012** **:-6-:** in appeal, especially when the petitioner failed to show any compelling or substantial reason to interfere with the order of acquittal recorded by the trial court in favour of the accused. 5. In a recent decision of the Apex Court reported in **State** v. **of Rajasthan Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held as follows:- “ _In cases where there are exceptional 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 ## **Crl.L.P.No.704 of 2012** ## **:-7-:** the double presumption of innocence bolstered as per the judgment in question. 6. Therefore, I find no ground 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. **V.K.MOHANAN** , Judge. MBS/