Kerala High Court
Siby Vettom vs S/O on 21 July, 2012
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 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934
Crl.L.P..No. 134 of 2013
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AGAINST THE ORDER/JUDGMENT IN ST.1534/2009 of J.M.F.C.,TALIPARAMBA
DATED 21-07-2012
PETITIONER/COMPLAINANT:
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SIBY VETTOM, AGED 52 YEARS,
S/O. DOMINIC PULINGOM, TALIPARAMBA, KANNUR DISTRICT.
BY ADVS.SRI.R.T.PRADEEP
SRI.P.BIJIMON
RESPONDENTS/ACCUSED AND STATE:
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1.S/O.
P.V.PRAKASH,
DAMODARA KURUP, PUTHEN VEETTIL,
ARATT THANA, MANANTHAVADI. PIN-673592.
2.REPRESENTED
STATE OF KERALA,
BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON
12-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.L.P.No.134 of 2013
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Dated this the 12th day of March, 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 accused borrowed a sum of `40,000/- from the complainant and to discharge the liability the accused issued Ext.P1 cheque which, when presented for encashment, was dishonoured for the reason fund insufficient and account closed and the accused has not repaid the amount in spite of a statutory notice issued on him. Therefore, according to Crl.L.P.No.134/2013 : 2 : the petitioner the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant is examined as PW.1 and produced Exts.P1 to P6 documents. On the side of the accused, the accused himself was examined as DW.1 and produced Exts.D1 to D3. The trial court finally found that the complainant has not proved the fact that the accused had borrowed the money from him and the cheque is drawn by the accused for payment of the amount of money in discharge of the debt. Consequently, the accused is found not guilty and he is acquitted under Section 255 (1) of Cr.P.C. This finding and order of acquittal that are proposed to challenge by filing an appeal for which leave of this Court is sought for.
3. I have heard Sri.R.T.Pradeep, the learned counsel for the petitioner.
4. The learned counsel for the petitioner vehemently submitted that the execution of Ext.P1 cheque is proved by the complainant and the accused Crl.L.P.No.134/2013 : 3 : has not denied the same. It is also the submission of the learned counsel for the petitioner that the accused has no acceptable explanation for convincing the fact as to how his cheque happened to be in the possession of the complainant/ petitioner and therefore, the finding of the court below is incorrect.
5. I am unable to accept the above contention. The specific case of the complainant, as per the averment in the complaint, is to the effect that the accused borrowed a sum of `40,000/- from him and towards the discharge of the said liability the accused issued Ext.P1 cheque. Whereas, the case of the accused is that he had chitty transaction with the complainant and Ext.P1 cheque was given in blank form when he prized chitty. According to the accused he received the chitty money and at that time the complainant obtained stamp paper and blank cheque by way of security and Ext.P1 cheque is so obtained by the complainant from the accused. It is in the above backdrop of the case of the accused, the trial Crl.L.P.No.134/2013 : 4 : court proceeded to examine the case on hand. In paragraph 9 of the judgment the trial court has found that absolutely there is no evidence except the statement of the complainant in his proof affidavit before the court. The trial court found that the accused has been residing at Mananthawadi and the complainant is residing at Taliparamba. Consequently, in the complaint or in the proof affidavit the complainant has not stated the date of borrowig the amount or the place at which the amount was handed over. The learned counsel for the petitioner has also read over to me the averment in the complaint and I am satisfied that no details of the loan transaction mentioned in the complaint.
6. With regard to the execution of the cheque in question, the learned Magistrate in paragraph 11 of the judgment has found that, nowhere in the complaint or in the proof affidavit filed by the complainant in lieu of chief examination it has stated that the complainant has seen the accused drawing the cheque or even signing the Crl.L.P.No.134/2013 : 5 : cheque. But during the course of the cross-examination the complainant stated that a filled up cheque was brought by the accused and signed in his presence. The learned Magistrate has observed that the complainant has no case that he insisted the accused to bring up a filled up but unsigned cheque and signed the cheque in his presence. According to the learned Magistrate commonsense does not permit to think that the accused all the way from Mananthawadi brought a filled up cheque to Taliparamba and affixed his signature in front of the complainant for convincing the latter of the execution of the cheque and that too had been done at the courtyard of a hotel. I find no fault with the observation and finding. In this juncture, it is relevant to note, considering the fact that the complainant is residing at Taliparamba and the accused at Mananthawadi, there ought have been some averments and evidences, connected with the bringing of filled up cheque as claimed by the complainant during his cross-examination. Crl.L.P.No.134/2013 : 6 : There must be a formal demand by the accused for the amount and an agreement for the payment of the same and to bring up a filled up cheque showing figure, etc. But in this case all such aspects are conspicuously absent. So from the above discussion of the learned Magistrate that contained in the above paragraph of the judgment it can be seen that, towards the transaction, absolutely there is no proper averment and evidence. The execution of the cheque is also not proved properly.
7. It is in the above backdrop the learned Magistrate considered the defence case and his evidence. The accused himself has got examined as DW.1 during which he had stated that the complainant had conducted an enterprise by name Vettom Chits Pvt. Ltd and the accused was one of the subscribers of the chit and he prized the chit and when he received prized money, stamp paper and blank cheque were obtained from him by way of security by the complainant and after repaying the chit amount, he demanded back the cheque. But it Crl.L.P.No.134/2013 : 7 : was not returned, and after one month the said enterprise was closed. During his examination, Ext.D1, which is document, writer's licence was marked. Ext.D2 is also marked which is a certified copy of the judgment in C.C.No.1092 of 2001 of Judicial First Class Magistrate Court, Manathawadi, passed against the complainant and his wife are the accused therein. The learned counsel for the petitioner submitted that, though the accused raised several contentions, none of those contentions are substantiated by producing any evidence. But it is relevant to note that, in paragraph 13 of the judgment the trial court has found that the chitty transaction as stated by the accused, when he was examined as DW.1, also admitted by the complainant at the time of his cross examination and learned Magistrate has further observed that though DW.1 was cross-examined by the learned counsel for the complainant, the evidence given by him that the cheque is one given as security for availing chit money and it contained only his signature is left Crl.L.P.No.134/2013 : 8 : unchallenged. Therefore, according to the learned Magistrate, there is no other option but to accept the evidence given by the accused. Thus, it can be seen that, on examination of the pleadings and evidence connected with the alleged transaction and execution of the cheque, it can be seen that there is no proper pleadings and evidence whereas from the available materials it can be seen that the accused has succeeded in making out a probable case as to how Ext.P1 cheque reached the hands of the complainant especially when the complainant has miserably failed to cross-examine the accused who examined as DW.1 about the case put forward by the accused with respect to the chitty transaction. It is on the basis of the above materials and evidence, the trial court refused to believe the case of the complainant and opted to accept the case of the accused and consequently found that the complainant has not succeeded in bringing home guilty of the accused. Thus, on examination of the facts and materials, which are referred to by the learned Crl.L.P.No.134/2013 : 9 : Magistrate in the judgment itself, it can be seen that the findings of the court below are supported by evidence and materials on record and it cannot be said that those findings are perverse or illegal. The petitioner has no case that the court below failed to take note of any materials which are in favour of the complainant. In the above circumstances, the finding of the court below is not perverse or illegal.
8. In a recent decision of the Hon'ble Apex Court reported in Pudhu Raja & Another Vs. State represented by Inspector of Police [(2013) 1 SCC (Crl.) 430=2012 (11)SCC 196], the Hon'ble Apex Court has held that, "14. The law on the issue of interference with an order of acquittal is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the 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 innocence, Crl.L.P.No.134/2013 : 10 : interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
On examination of the facts and circumstances involved in the case, in the light of the above dictum laid down by the Apex Court, it can be seen that, the petitioner has miserably failed to show any exceptional or compelling circumstances to interfere with the order of acquittal and the appellant has failed to show that the findings of the court below and the judgment are perverse or illegal. Therefore, this Court will not be justified in interfering with the order of acquittal in case an appeal is entertained.
Therefore, the present petition fails and accordingly, the same is dismissed.
Sd/-
V.K.MOHANAN, JUDGE skj True copy P.A. to Judge