V.R. Aneesh S/O. K.Velayudhan Nair v Renjith Chandrakumar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2012/21ST BHADRA 1934 Crl.L.P..No. 480 of 2012 ------------------------(AGAINST THE ORDER DTD.29.12.2011 IN ST.139/2010 of J.M.F.C.-IV, NEYYATTINKARA) PETITIONER/COMPLAINANT: ---------------------- V.R.ANEESH S/O. K.VELAYUDHAN NAIR, AGED 31 YEARS KURICHIYILMELE SURESH BHAVAN, OORUTUKALA NEYYATTINKARA, PIN-695121. BY ADVS.SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS/ACCUSED & STATE: --------------------------- 1. RENJITH CHANDRAKUMAR SON OF RAMACHANDRAN NAIR, RENJINI, KOTTUKAL PAYATTIVILA P.O., NEYYATTINKARA, PIN-695 121. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, KOCHI-31. R1 BY ADV. SRI.G.P.SHINOD BY ADV. SRI.RAM MOHAN.G. BY ADV. SRI.MANU V. R2 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 12- 09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.L.P.No. 480 of 2012** **---------------------------------------Dated this the 13[th] day of September, 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. The case of the complainant is that the accused borrowed `1 lakh from the complainant on 24.7.2008 and on that date itself, the accused issued Ext.P1 cheque dated 24.1.2009 towards the discharge of the said liability and the said cheque was dishonoured, when presented for encashment as there was no sufficient fund in the account of the accused and the accused has not paid the amount in spite of statutory notice and therefore, the accused has committed the offence ## **CRL.L.P.No. 480 of 2012** ## **:-2-:** punishable under Section 138 of the N.I.Act. During the trial of the case, Pws.1 to 4 were examined and Exts.P1 to P7 were marked from the side of the complainant. Fromm the side of the defence, Dws.1 to 3 were examined, but no document is produced. Exts.C1 to C1(b) were marked as court exhibits. The trial court, finally, has found that the complainant has failed to prove the execution of Ext.P1 cheque and therefore, he is not entitled to get the benefit of presumption under Section 118(a) and 139 of the N.I.Act. Based upon such finding, the accused is found not guilty and accordingly, he is acquitted under Section 255(1) of the 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 sought for. 3. Heard Sri.G.Sudheer, learned counsel for the petitioner and I have also perused the judgment sought to be impugned. 4. Counsel for the petitioner vehemently submitted that the available evidence shows the execution of the cheque and for the sole fact that the complainant did not witness the endorsement made in the ## **CRL.L.P.No. 480 of 2012** ## **:-3-:** cheque cannot be taken to hold that the complainant failed to prove the execution of the cheque. According to the counsel, when the accused has admitted his signature in the cheque in question and coupled with the other evidence of PW1, the court below ought to have held that the complainant has proved the execution of the cheque and the benefit under Section 139 of the N.I.Act is to be extended in favour of the complainant. It is also the case of the counsel that the story put forwarded by the accused about the cheque is unbelievable and the accused has no convincing explanation as to how his cheque came in the possession of the complainant. Therefore, the counsel submitted that in case an appeal is entertained, there is every possibility to interfere with the findings of the court below and the order of acquittal and therefore, the petitioner is entitled to get the leave as sought for. 5. I have considered the submission made by the learned counsel very carefully. In the light of the arguments advanced by the counsel for the petitioner and in the light of the findings of the court ## **CRL.L.P.No. 480 of 2012** ## **:-4-:** below and on the basis of the evidence and materials referred to therein, the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge against the findings of the court below and the order of acquittal recorded in favour of the accused. 6. The case of the complainant in short is to the effect that on 24.7.2008, the accused borrowed an amount of `1 lakh and on that day itself, Ext.P1 cheque dated 24.1.2009 was executed and issued at the time of borrowing the amount whereas the case of the defence is that Ext.P1 cheque, which pertains to the account of the accused, happened to be in the possession of the complainant from his brotherin-law with whom the said cheque was entrusted being security for driving the vehicle of the brother-in-law of the complainant. Of course, the above case is not fully approved by the court below. Though the accused has also adduced evidence in this regard, the learned Magistrate is of the opinion that the evidence are not sufficient to prove that the accused handed over the cheque to the complainant's ## **CRL.L.P.No. 480 of 2012** ## **:-5-:** brother in law, but it is specifically found that DW1 was consistent in deposing that he issued Ext.P1 as a blank cheque to the brother-in-law of the complainant. Thus, the accused has got a clear case as to how Ext.P1 cheque reached in the hands of the complainant. The entire case of the complainant and the findings of the court below have to be examined in the above backdrop of the defence advanced by the accused. 7. There is no clear cut evidence to show that the accused has previously demanded for an amount of `1 lakh on any particular date and the complainant agreed for the payment of such amount on 24.7.2008 and the accused was directed to come with a cheque, either in blank form or filled up, so as to give as security or towards the discharge of the same. At the most, what can be gathered from the evidence of PW1/the complainant is that on a fine morning of 24.7.2008, the accused borrowed the amount and towards that transaction, he brought up a filled up cheque with all particulars and put a signature on the same in the presence of the complainant. ## **CRL.L.P.No. 480 of 2012** ## **:-6-:** According to me, that case of the complainant cannot be believed in the absence of particular facts, which I pointed out earlier. The learned Magistrate has categorically found that on scrutinising the evidence adduced by PW1, it is seen that the complainant was not present at the time of executing the other entires in Ext.P1 cheque except the signature. The evidence of PW2, according to the learned Magistrate, is also not sufficient to prove the execution of the cheque. Admittedly, the accused is a person having necessary education and the evidence from the side of the complainant is not sufficient to hold that the accused is aware of that the complainant will part an amount of `1 lakh to the accused on 24.7.2008 and therefore, according to me, it is unbelievable that the accused brought a filled up cheque for an amount of `1 lakh showing the date of the cheque as 24.1.2009. The accused, being a literate person and having necessary education, is not expected to bring a filled up cheque even if the transaction is considered as true. Thus, absolutely there is no evidence to prove the execution of the cheque and what proved through PW1 is only the ## **CRL.L.P.No. 480 of 2012** ## **:-7-:** putting of the signature by the accused and the same is not sufficient to prove the execution. When the accused refuted the claim of the complainant regarding the transaction, the execution and issuance of the cheque, the above evidence of PW1/the complainant is not sufficient to attract the essential ingredients of Section 138 of the N.I.Act, especially when the accused has got a consistent version as to how Ext.P1 cheque reached in the hands of the complainant. From the above facts and materials and in the light of the above discussion, it can be seen that the trial court has come into its conclusion on the basis of the available evidence and materials and by assigning sound reasons. Therefore, it cannot be said that the findings of the court below are perverse and illegal. The petitioner has no case that the trial court has overlooked any material or evidence which is in favour of the complainant. Under the above circumstances, even if an appeal is entertained, there is no scope for any interference with the findings of the court below and the order of acquittal recorded in favour of the accused. **CRL.L.P.No. 480 of 2012** ## **:-8-:** 7. In a recent decision of the Apex Court reported in **State of** ## v. **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, I find no scope for any interference, even if an appeal is entertained against the above finding and the order of acquittal. No substantial or compelling reason is made out to interfere with the order of acquittal recorded by the learned Magistrate or establish that the judgment is perverse. Therefore, the petitioner has miserably failed to make out a case to grant special leave under Section 378(4) of Cr.P.C. ## **CRL.L.P.No. 480 of 2012** ## **:-9-:** Accordingly, this Criminal Leave Petition is dismissed. **V.K.MOHANAN** , Judge MBS/ ## **CRL.L.P.No. 480 of 2012** **:-10-:** V.K.MOHANAN, J. CRL.L.P.No. OF 20 O R D E R Dated:2. ..2011 ## **CRL.L.P.No. 480 of 2012** **:-11-:**