Kerala High Court
M/S.Sree Gokulam Chit & Finance Co. Pvt. ... vs D/O.Velappan on 30 December, 2011
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934
Crl.L.P..No. 707 of 2012
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AGAINST THE ORDER/JUDGMENT IN CC.788/2009 of J.M.F.C., KAYAMKULAM
DATED 30-12-2011
PETITIONER/COMPLAINANT:
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M/S.SREE GOKULAM CHIT & FINANCE CO. PVT. LTD.
SREE GOKULAM TOWERS,NO.66,ARCOT ROAD,
CHENNAI-24,REPRESENTED BY CHANDRAN PILLAI,
AGED 42 YEARS,S/O.KOCHU PILLAI,
ASST. BUSINESS MANAGER,KAYAMKULAM BRANCH,
RESIDING AT SREEBHAVANAM,THOTTUVA MURI,
SOORANAD NORTH VILLAGE.
BY ADVS.SRI.K.S.BABU
SMT.N.SUDHA
SRI.BABU SHANKAR
RESPONDENTS/ACCUSED AND STATE:
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1.D/O.VELAPPAN,ASWINI
ANITHA SOMAN,
VILLA,PATHIYOOR EAST.P.O.
KEERIKADU,KAYAMKULAM,ALAPPUZHA DISTRICT,
PIN CODE-690 508.
2.REPRESENTED
STATE OF KERALA,
BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.682 031.
R1 BY ADV. SRI.MANOJ RAMASWAMY
R1 BY ADV. SRI.K.T.THOMAS (KANNAMPALLIL)
R2 BY PUBLIC PROSECUTOR SRI.T.RAMPRASAD UNNI
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON
05-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.L.P.No.707 of 2012
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Dated this the 05th day of February, 2013
ORDER
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 husband of the accused is a subscriber of chitty No.J3G/0058/JMM/07 for a sala of `3,00,000/- and he prized the chitty, but he failed to repay the chitty amount and when the complainant demanded back the amount, the accused, who is a lady came to the office of the complainant along with her husband and issued Ext.P2 Crl.L.P.No.707/2012 : 2 : cheque dated 27/08/2009 for an amount of `80,756/- but the said cheque when presented for encashment dishonoured due to insufficiency of fund in the account maintained by the accused and the accused has not paid back the amount in spite of a statutory notice caused to send at the instance of the complainant. Thus, according to the complainant, the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PW.1 was examined from the side of the complainant and produced Ext.P1 to P7. Though no witness was examined from the side of the accused, Ext.D1 pass book was produced as defence evidence. After considering the entire evidence and materials, the trial court came to the conclusion that the complainant has failed to establish the case beyond reasonable doubt. The execution of cheque is not satisfactorily established and therefore this is not a fit case to draw statutory presumption under Section 139 of the N.I.Act. So, it was finally held, in such a situation, the Crl.L.P.No.707/2012 : 3 : accused cannot be said to have issued Ext.P2 cheque to the complainant in discharge of a legally enforceable debt. Based upon the said finding the accused is acquitted for the offence under Section 138 of the N.I.Act. It is the above finding and order of acquittal sought to be challenged by filing an appeal for which the leave of this Court is prayed for.
3. The learned counsel for the petitioner vehemently submitted that the accused has admitted the issuance of the cheque and therefore the finding of the court below is liable to be interfered with. To substantiate the above contention, the learned counsel has relied upon the decision of this Court in Bhaskaran Chandrasekharan Vs. Radhakrishnan 1998(1)KLT
881.
4. I have carefully considered the contentions raised by the learned counsel for the petitioner and I have gone through the judgment of the trial court which sought to be impugned and the decision cited supra. Crl.L.P.No.707/2012 : 4 :
5. From the admitted facts it appears that the husband of the accused is one of the subscribers of the chitty conducted by the complainant. Though the case of the complainant is that the accused executed and issued Ext.P2 cheque, the case of the defence is that at the time of receiving the prized chitty amount the complainant has obtained a blank signed cheque from her possession and the said cheque misused in the present case for filing the complaint and as such the defence denied the execution and issuance of the cheque towards the discharge of any liability due to the complainant. The defence has also got a case that they have discharged the entire liability and no amount is due to the complainant. To prove the said fact they have produced Ext.D1 pass book issued from the complainant.
6. The learned Magistrate of the trial court proceeded to consider the case of the complainant under the above factual premises. In paragraph 9 of the judgment sought to be impugned it is specifically found Crl.L.P.No.707/2012 : 5 : that the accused produced Ext.D1 pass book issued from the office of the complainant to enter payments of the chitty and as per the said document a sum of `2,30,850/- is shown to have been credited to the account of the subscriber. In this juncture, it is relevant to note that though the chitty was for sala of `3,00,000/- the prized amount is `2,25,000/-. But as per Ext.D1 pass book the complainant itself has been credited `2,30,850/- to the account of the subscriber. But the version of PW.1 before the court below is that, the said amount consists of chitty bonus which is to be excluded in the case of defaulted subscriber. So, according to PW.1, a sum of `2,02,250/- can only be credited to the account as actual payment. According to PW.1, as observed by the learned Magistrate, the cheque amount includes interest. But PW.1 has not stated the rate of interest. The learned Magistrate proceeded to observe that, it is not made clear that as to how much amount falls under the head 'principal amount' and how much under the head Crl.L.P.No.707/2012 : 6 : 'interest'. The learned Magistrate has also found that the complainant has not produced a single piece of evidence to establish the dues under the chitty account, though the complainant is in custody of the records and registers with respect to the payment of details of the subscriber. According to the accused, during her 313 examination her version is that only `47,000/- is liable to be paid in the account and that the amount shown in Ext.P2 cheque is an inflated figure. So, the trial court has found that the complainant has failed to place on record or any material to convince the court that the cheque amount is actually liable to be paid by the accused. According to me, the above observation and finding of the learned Magistrate is absolutely correct, especially when no convincing explanation supported by any evidence or materials forthcoming as to how in Ext.D1 credit given to the tune of `2,30,850/- in favour of the subscriber. So, in the above factual background and the evidence, the trial court has held that the defence version regarding the Crl.L.P.No.707/2012 : 7 : filling up of blank cheque, according to the whims and fancies of the complainant, cannot be ruled out in this case.
7. In this juncture, it is relevant to note that, as contented by the learned counsel for the petitioner in the present case the defence has never admitted the execution or issuance of the cheque as claimed by the complainant. As I indicated earlier, the specific case of the defence is that, Ext.P2 cheque in its blank form has obtained by the complainant, when the subscriber received the prized amount. The decision relied on by the learned counsel for the petitioner is arising out of a civil dispute. In paragraph 2 of the above decision it has specifically found that, "defendant in his written statement stated that he had not borrowed `30,000/- from the plaintiff. However, he admitted the issuance of the cheque. According to him, it was issued without consideration for adjustment of certain transactions in connection with toddy shops of Kottarakkara Range." Crl.L.P.No.707/2012 : 8 : After considering the scope of Section 118 of the N.I. Act in paragraph 9 of the above judgment, the Division Bench of this Court has held that, when once the execution of the cheque is admitted, presumption under Section 118 of the Act arise, until the contrary is proved. Same is the position laid down by the Apex Court in the decision reported in Kumar Exports Vs. Sharma Carpets 2009 (1)KLT 197 SC. The holder of the cheque or complainant can invoke the presumption under Section 139 of the N.I. Act only when either the execution of cheque is admitted or proved. In the present case, the execution of cheque is not proved and there is no admission of the same. Therefore, the presumption under Section 139 of the N.I. Act cannot be invoked by the complainant. Therefore, decision cited by the counsel for the petitioner has no relevancy and applicability in the present case.
8. Thus, going by the judgments sought to be impugned it can be seen that, the trial court refused to accept the case of the complainant by assigning cogent Crl.L.P.No.707/2012 : 9 : and satisfactory reasons and those reasons cannot be termed as perverse or illegal. If that be so, in an appeal against the order of acquittal, this Court will not be justified in interfering with the order of acquittal unless it is shown that the judgment of the trial court is perverse or illegal. Therefore, even if an appeal is entertained there is not even a remote scope to interfere with the order or acquittal recorded in favour of the accused.
In the result, there is no merit in this leave petition and accordingly the same is dismissed.
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge