Kerala High Court
M/S.Sree Gokulam Chit And Finance Co(P) vs Lilly Pushpam Aged 40 Years on 4 April, 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
WEDNESDAY, THE 4TH DAY OF APRIL 2012/15TH CHAITHRA 1934
Crl.L.P..No. 181 of 2012
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9ST.1690/2008 of J.M.F.C.IV (MOBILE COURT),
THIRUVANANTHAPURAM.
PETITIONER/COMPLAINANT:
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M/S.SREE GOKULAM CHIT AND FINANCE CO(P)
LTD.,REP. BY ITS MANAGING DIRECTOR,SRI. A.M.GOPALAN
THROUGH HIS POWER OF ATTORNEY HOLDER RENJITH C.R.
S/O.MR. CHANDRASEKHARAN NAIR, LEGAL ASSISTANT, SREE
GOKULAM CHIT AND FINACE CO. PVT. LTD., ATTUKAL
SHOPPING COMPLEX, FORT, THIRUVANANTHAPURAM.
BY ADVS.SRI.K.S.BABU
SMT.N.SUDHA
SMT.M.K.ASWATHI
RESPONDENTS/ACCUSED & STATE:
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1. LILLY PUSHPAM AGED 40 YEARS,
D/O. VALSALAM, MANIVILASAM, KAKKATHOKKI
KOOTHALI.P.O, NEYYATTINKARA-695505.
2. STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
R2 BY PUBLIC PROSECUTOR SMT. LALIZA T.Y.
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD
ON 04-04-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.LP. No. 181 of 2012
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Dated the 4th April 2012
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 of this court under section 378(4) of the Criminal Procedure Code (for short 'the Cr.P.C.') to file an appeal against the judgment dated 6.5.2009 of the court of Judicial First Class Magistrate-IV (Mobile Court), Thiruvananthapuram by which the learned Magistrate in his complaint, acquitted the accused under section 255(1) of Cr.P.C.
2. The case of the complainant, which is a company engaged in the chitty business, is that the accused issued a cheque bearing No.916009 dated 21.1.2008 for Rs.73,000/- towards the discharge of her liability to the complainant company and when the said cheque presented for collection, the same was returned dishonoured as there was no sufficient fund in the account and subsequently, a statutory notice was served on the respondent accused informing her the dishonour of the cheque and demanding the payment of the amount covered by CRL.L.P 181 OF 2012 :-2-:
the dishoured cheque. But the accused failed to discharge her liability and therefore, the accused has committed the offence punishable under section 138 of the NI Act.
3. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P7. The trial court has finally found that, the complaint in this case is seen lodged under the pretext that the accused has received amount from the complainant company in respect of a chitty transaction and the same is fortified by the deposition of PW1 during his cross examination. The trial court has further found that the case of the accused that she was only a guarantor in respect of one Sukumariamma and the accused has not received any money from the complainant company. Thus according to the learned Magistrate, the complainant company has failed to prove the nature of transaction between the accused and the complainant company and also found that the complainant company has failed to produce documents to show that the accused was the subscriber of the chitty conducted by the complainant company. Thus according to the learned Magistrate, the complainant has failed to adduce prima facie CRL.L.P 181 OF 2012 :-3-:
evidence to prove the due execution of Ex.P3 cheque by the accused and on the basis of the above finding and observation, the learned Magistrate has held that there is no satisfactory evidence tendered by the complainant company to prove the due execution of Ext.P3 cheque by the accused in their favour. Accordingly, the accused was found not guilty and acquitted under section 255(1) Cr.P.C and 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 .
4. I have heard Smt. N.Sudha, the learned Counsel appearing for the petitioner. I have also perused the judgment of the trial court.
5. The learned counsel for the petitioner vehemently submitted that the finding of the court below is not correct and, in a complaint for the offence under section 138 of the NI Act, the complainant need not state the entire details of the transaction. It is also the submission of the learned counsel that even according to the accused, she had stood as surety for the principal debtor and the blank cheque issued by her was misused in this case and therefore, according to the learned CRL.L.P 181 OF 2012 :-4-:
counsel, in the light of the decision reported in Anil Sachar v. M/s. Sree Nath Spinners Pvt. Ltd (2011(2) KLD 208), the accused is liable to be punished under section 138 of the NI Act. It is also the submission of the learned counsel that , in the light of the decision in Vijender Singh v. Eicher Motors Ltd. (2012(1) KLT SN 28(C.No.31) that by giving blank cheque, an implied authority is given to the holder of the cheque to fill up the same and to claim the amount towards the discharge of the liability. Thus according to the learned counsel, in the light of the above facts and the settled position, the findings of the court below is incorrect and illegal which are liable to be interfered with for which the petitioner is entitled to get leave of this court so as to file an appeal.
6. I am unable to sustain the above contention. The learned Magistrate, after perusal of the complaint and the evidence tendered through PW1, has categorically found that the complainant has lodged the complaint under the pretext that the accused has received amount from the complainant company in respect of a chitty transaction. According to the learned Magistrate, the evidence of PW1 is also fortified the CRL.L.P 181 OF 2012 :-5-:
above allegation. But in the present case, a specific defence taken by the accused is that she was only a guarantor in respect of one Sukumariamma who is the subscriber of a chitty conducted by the complainant. It is now well settled that in a prosecution for the offence punishable under section 138 of the NI Act, the complainant need not state the entire details of the original transaction. But on a reading of Section 138 of the NI Act, it is crystal clear that it is the duty of the complainant to state in brief the exact nature of debt or the liability. The requirement of stating the nature of the liability or the debt or the transaction depends upon the facts and circumstances involved in each case. In some cases, the cheque may be issued to discharge any liability that arising out of personal loan or otherwise or, as in the present case, probably, the drawer of the cheque may be a guarantor or surety etc. Therefore, no straight jacket rule can be laid down with respect to the pleadings to be taken in a prosecution for the offence punishable under section 138 of the NI Act. If the accused admits the execution and issuance of the cheque, there need not be any further plea or the details need not be mentioned because, in that case, CRL.L.P 181 OF 2012 :-6-:
the presumption under section 139 of the N.I Act as well as under section 118 will be available in favour of the complainant. But in a case, where no reply is given to the statutory notice, still then it is for the complainant to take necessary pleadings particularly with respect to the nature of the liability or debt. When the accused disputed the execution and issuance of the cheque, it is an unshifted burden of the complainant to plea and prove the transaction under which the liability arose and the cheque in question executed and issued. But the entire details need not be pleaded. That details can be furnished at the time of trial. But it is incumbent upon the complainant to prove the nature of liability. Suppose in a case for the prosecution under section 138 of the NI Act, the defence of the accused is that the cheque is a stolen one or lost from his possession, in that case, it is incumbent upon the complainant to prove the circumstances under which the liability arose and also the execution and issuance of the cheque. Therefore, the pleadings in the complaint in a prosecution for the offence under section 138 of the NI Act depends upon the facts and circumstances involved in each case. Mere stating that, the CRL.L.P 181 OF 2012 :-7-:
cheque was issued for discharging the liability, is not sufficient unless the same is admitted by the accused. In the present case, the learned counsel for the petitioner is not disputing the observation made by the learned Magistrate that, the complaint in this case is seen lodged under the pretext that the accused has received amount from the complainant company in respect of a chit transaction. So also, the evidence of PW1 is also tallying with the above case of the complainant that brought on record during the cross examination of PW1. Thus in the present case it is crystal clear that the complainant has no case as to how the liability arose connected with the cheque in question. If the complainant has got a case that the accused issued the cheque being the guarantor, such fact can be pleaded in the complaint and the evidence can be adduced in terms of such pleading. But in the pleading, the liability part of the accused is completely absent in the complaint and there is no evidence whatsoever in this case to show that the accused issued the cheque being the guarantor and to discharge the liability arising out of that contract or the complainant was authorised to fill up that blank cheque, issued in her capacity as a guarantor. CRL.L.P 181 OF 2012 :-8-:
7. It is also relevant to note that the learned Magistrate has also found that the complainant company has failed to produce documents to show that the accused was the subscriber of the chit conducted by the complainant company. When the accused disputed the liability, and also the execution and issuance of the cheque in question, it is for the prosecution to take necessary pleadings and prove the same to the satisfaction of the trial court. But here there is no such pleadings and there is no evidence as well. According to the complainant, Ext.P3 cheque was issued by the accused towards the discharge of the liability, whatsoever, but there is no pleadings and evidence as to how the liability arose. I have already referred to the observation and finding of the learned Magistrate on the basis of the averments in the complaint as well as the evidence of PW1.
8. It is also relevant to note that during the cross examination of PW1, he had stated that the accused had executed Ext.P3 cheque in pursuance of a notice issued by the complainant on this behalf. In this juncture it is also relevant to note that there is no specific pleadings or details as to how and CRL.L.P 181 OF 2012 :-9-:
when the accused executed and issued the cheque. Even in the absence of such pleading and evidence, PW1 claimed that Ext.P3 was issued pursuant to notice issued by the complainant. But the learned Magistrate has observed that, no scrap of paper is produced to show that the complainant has issued such a notice informing the accused that such amount is due and demanding to discharge the same. The learned Magistrate has also stated in paragraph 6 of the judgment that "in this case during hearing, the learned counsel appearing for the complainant has fairly conceded that the accused was only a guarantor". Thus it is clear that in the complaint, there is no pleading to the effect that the accused has executed and issued the cheque towards the discharge of the liability being a guarantor. So, in the absence of specific plea and evidence, regarding the liability and the circumstances under which the cheque in question issued, the complainant cannot bank upon the pleadings of the accused. According to me, in the light of the above facts and circumstances, the decisions relied on by the learned counsel for the petitioner i.e.,Anil Sachar v. M/s. Sree Nath Spinners CRL.L.P 181 OF 2012 :-10-:
Pvt. Ltd (2011(2) KLD 208), and Vijender Singh v. Eicher Motors Ltd. (2012(1) KLT SN 28(C.No.31) have no application in the present case. In a case for prosecution under section 138 of the NI Act, against the accused, who being the guarantor, and in that case, the accused admits that the accused had furnished blank cheque as a guarantee, certainly the dictum laid down by the above case is attracted. But here the complainant has no such case. Moreover, it is also relevant to note that PW1 says that the accused was intimated regarding the liability and pursuant to that intimation, the accused executed the cheque, but there is no pleading and evidence in this regard. Thus according to me, the learned Magistrate is fully justified in his finding that the complainant has miserably failed to prove due execution of the cheque by the accused in their favour. In the light of the above discussion, and the evidence and materials referred to in the judgment which sought to be impugned, it can be seen that the learned Magistrate has assigned his own judicial reasons and therefore it cannot be said that the said findings are perverse or illegal. If that be so, even if an appeal is entertained, according to me, there is not even a remote CRL.L.P 181 OF 2012 :-11-:
scope to interfere with the above finding. It is also relevant to note that, in order to interfere with an order of acquittal, it is the duty of the appellant to show that the finding of the court below is perverse or the appellant has made out some substantial reason to interfere with the order of acquittal. Unless there are such grounds, the double presumption claimed by the accused by the order of acquittal cannot be disturbed. In the present case, the petitioner has miserably failed to make out any substantial reason to interfere with the order of acquittal recorded by the trial court.
In the result, this petition is devoid of any merit and accordingly, the same is dismissed.
V.K. MOHANAN, JUDGE.
Kvm/-