The Hon'ble Court examined a Special Leave Petition under Section 378(4) Cr.P.C. seeking to appeal an acquittal in a cheque dishonour case. Finding the complainant's evidence improbable, the Court dismissed the leave petition.
Leave to appeal was denied and the leave petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934
Crl.L.P..No. 112 of 2013 ( )
ST.988/2006 of J.M.F.C.-IV (PRINCIPAL MUNSIFF), NEYYATTINKARA DATED 30-08-2008
PETITIONER/ COMPLAINANT(S):
RENE GLADSTONE, ROSE MOUNT, THONGAL, NELLIMOODU P.O.
BY ADV. SRI.R.T.PRADEEP
RESPONDENTS/ACCUSED & STATE :
1. THE STATE OF KERALA, REPRESENTED BY the PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. D.VIJAYAN, GOVERNMENT CONTRACTOR, MITHUN COTTAGE, INCHIPULLUVILA, MULLUVILA P.O.
BY ADV. SRI.G.SUDHEER
BY PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.L.P.No.112 of 2013
Dated this the 19th day of February, 2013.
O R D E R
The complainant in a prosecution for the offence punishable under section 138 of NI Act is the petitioner, who seeks leave of this Court under section 378(4) of Cr.P.C. to file an appeal against the judgment dated 30.8.2008 in S.T.No.988 of 2006 of the court of the Judicial First Class Magistrate-IV (Principal Munsiff), Neyyattinkara, by which the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.
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statutory notice on the respondent/accused, no amount was paid and therefore the accused has committed the offence punishable under section 138 of the NI Act. The trial court after considering the entire evidence and materials found that the inconsistent version and the improbable stand maintained by the complainant make his case dubious and it is further found that even though the accused is not in a position to challenge the veracity of the signature in the cheque, there exists broad improbabilities in the complainant's version and therefore if at all the execution is proved and presumption arises under section 139 of the NI Act, that presumption stands rebutted. Consequently, found that the accused is not guilty and accordingly he is acquitted under section 255(1) of Cr.P.C. by the judgment dated 30.8.2008. It is the above finding and order of acquittal sought to be challenged, for which leave of this Court is prayed for in this petition.
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for the petitioner.
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when the alleged amount was given to the accused, the accused was indebted to the complainant connected with the loan availed by the accused from the District Cooperative Bank for which the complainant was one of the sureties and therefore the learned Magistrate was of the opinion that when the accused was a defaulter, the complainant would not have released such a huge amount to such a defaulter. It is in the above backdrops of the case, the learned Magistrate proceeded to examine the case of the complainant and the accused. It is relevant to note that the case of the complainant is that a sum of `4 lakhs was given as a loan to the accused on 1.3.2006. Suffice to say that no security or document obtained from the accused to secure the repayment of the said amount. Learned counsel for the petitioner submitted that as the complainant and the accused is known for years together and particularly when the accused was a friend of the father of the complainant, there was no necessity for
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getting a document connected with the loan given to the accused. But in the present case, it is borne out from the judgment itself that the complainant is a person who filed petition before the Lokayuktha and also filed a Caveat petition in this Court. According to me, it is not believable that, if the transaction is true, such a man who is prepared to initiate proceedings before the Lokayuktha and before this Court, has not demanded any security document for the loan allegedly given by him to the accused. So with respect to the loan transaction, according to me, except the interested version of PW1, the complainant, there is no other independent evidence or materials. Regarding the execution of cheque also, the entire case of the complainant is not free from doubt. In this case it is relevant to note that the case advanced by the defence as to how Ext.P1 cheque happened to be in the possession of the accused is to the effect that the complainant and his mother came to the house of the accused and after
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threatening, a cheque was obtained. It is true that, those version is not substantiated by any evidence or materials. But it is relevant to note that even as per the case of the complainant, he does not know as to who has filled the cheque in question. The version before the court is that the accused brought a filled up cheque and signed the cheque in his presence. I failed to understand, as to why the accused adopted such a course and why the complainant, who is an employee of KSEB, accepted such a cheque without his own satisfaction that the cheque is duly executed and signed by the accused. So with respect to the contents of Ext.P1 cheque and as to who made those entires, absolutely there is no evidence. The absence of evidence in this regard has to be read along with the case of the defence, that the cheque in question was obtained under threat. In this respect it is relevant to note that it is an admitted case that during the month of April 2006, the complainant has received a notice connected with a loan
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transaction of which the complainant stood as a surety in favour of the accused. As I indicated earlier, with respect to the release of an amount of `4 lakhs, there is no documentary or independent evidence. The case of the complainant is that the accused executed Ext.P1 cheque dated 3.4.2006. But it is relevant to note that as per Ext.P2 dishonour memo, the cheque was dishonoured on 19.5.2006. Ext.P3 dishonoured slip is dated 10.6.2006. So, it appears that Ext.P1 cheque was presented after the receipt of notice, connected with the loan of which the complainant has stood as surety. So, when the above facts are taken together, according to me, the case of the complainant shrouded with doubt and the complainant has miserably failed to remove those doubts to the satisfaction of the court. Therefore, with respect to the transaction and the execution of the cheque, the available evidences are not sufficient to believe the case, rather, the version of the complainant and the evidence on record improbabilise the
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case of the complainant. Thus according to me, the learned Magistrate is fully justified in disbelieving the case of the complainant and the learned Magistrate has assigned reasons on the basis of the available materials and evidence to come into such conclusion. Therefore, it cannot be said that those findings of the court below are perverse or illegal. In a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} the Honourable Apex Court has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. On examination of the facts and circumstances involved in the case and the findings of the court below, in the light of the decision cited supra, according to me, even if an appeal is entertained, there is
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little scope for interference with the findings of the court below and the order of acquittal.
Therefore, the above leave petition is devoid of any merit and accordingly the same is dismissed.
Sd/- V.K.MOHANAN, Judge
ami/
//True copy//
P.A. to Judge
3 issues framed by the court
Whether leave should be granted to the complainant to appeal against the order of acquittal.
Whether the findings of the court below were perverse or illegal.
Whether the evidence regarding the loan transaction and execution of the cheque creates doubt requiring interference.
Colour shows how this judgement treated each authority
Pudhu Raja and another Vs. StateRelied on¶47
Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} · Who else cites this
4 provisions across 2 enactments
Rene Gladstone
The State of Kerala
D.Vijayan
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
