This order dismisses a leave petition filed by a complainant to obtain leave to appeal against an order of acquittal. The leave court upheld the trial court's view that the sole witness lacked direct knowledge of the transaction or cheque execution.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933
Crl.L.P..No. 215 of 2011()
-------------------------CC.525/2009 of J.M.F.C., KODUNGALLUR ....................
LEAVE PETITIONER/COMPLAINANT
M/S.SHALOM KURIES PVT.LTD, REGISTERED & HEAD OFFICE, IST FLOOR, PAS BUILDING, PALAKKAL ANGADI, THRISSUR, REPRESENTED BY ITS MANAGER M.A.RAFFI, MOOKKAN HOUSE, THALORE, THRISSUR.
BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA
RESPONDENT(S): ACCUSED & STATE
ADV. SRI.T.H.ABDUL AZEEZ FOR R1 SRI.P.M.ABDUL JALEEL (KODUNGALLUR) FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sou.
K. HEMA, J
Crl.L.P.No.215 OF 2011 ----------------------------------Dated 25th May, 2011
O R D E R
This petition is filed to grant leave to file appeal against an order of acquittal.
PW1 was examined Ext.P1 to P7 were marked on the side of prosecution. Accused did not adduce any evidence but denied the execution of cheque and disputed the liability. Trial court held that petitioner failed to prove his case and hence accused was acquitted.
Heard petitioner's counsel. It is submitted by him that PW1 was the manager of the company and he gave evidence in support of the prosecution case. Accused did not deny execution
CRLP. No.215/11 2
of cheque, until he was questioned under section 313 Cr.P.C. Trial court wrongly rejected the evidence of PW1 and held that execution is not proved, it is argued.
On hearing petitioner's counsel, and on going through the order under challenge I find that trial court has entered findings against appellant, supported by sound reasons. Trial court found that PW1 is the sole witness, but he did not have any direct knowledge of transaction or execution of cheque. Hence there is no evidence regarding execution and transaction. Mere examination of a witness is not sufficient to prove the offence, but his evidence must be legally acceptable. I do not think that finding is wrong or perverse. In paragraph 11 of the impugned order, the following observations are made:
“11. During cross examination PW1 has admitted that he is the office manager of the complainant and he has been working in the complainant company since two months prior to adducing evidence in this case. It is admitted by PW1 that he has no direct knowledge bout the Kury transaction with respect to this case. According to him all the documents in connection with the kury is there in the head office. Even then he has not produced any document of the kury transaction in this case. According to him he does not know the period of the kury and similarly as per his knowledge the kury was not expired at the time of instituting this complaint. He would further
CRLP. No.215/11
3
depose that he does not know auction was conducted from which place. When it is asked to PW1 that whether the cheque was issued by the accused for discharging the defaults up to December, he shas not given a positive answer. His answer would show that he is not sure about the same. He has admitted that he does not know the number of defaults up to December. Similarly, according to him he does not know on what basis the amount shown in the cheque. Therefore the evidence of PW1 would show that he has no knowledge about the transaction and even he is not aware about the existing liability between complainant and accused. PW1 has also admitted that he does not know who has written in Ext.P2 cheque as he has not witnessed the execution. According to him he does not know whether a civil suit was instituted against the accused for realising the amount.”
I am satisfied that trial court has correctly analysed the
evidence and come to the correct findings. There is no ground to grant leave.
Petition is dismissed.
K. HEMA, JUDGE.
Sou.
2 issues framed by the court
Whether the leave petition for appeal against acquittal in post-dated cheque dishonour should be allowed.
Whether the trial court rightly acquitted the accused due to insufficient evidence regarding the execution of the cheque.
1 provisions across 1 enactments
M/S SHALOM KURIES PVT.LTD
STATE OF KERALA
MURALEEDHARAN
K. HEMA
As recorded by the court registry
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