Dismissed

Muthoot Leasing & Finance Ltd. v. Vinu Soman

Kerala HC6 Mar 2013Crl.L.P./138/2013

Case brief

AI extract

What is this about?

In a criminal leave petition against an acquittal order in a cheque dishonour case, the High Court of Kerala upheld the trial court's finding that the complainant failed to prove the execution of the cheque due to inconsistent ink features and dismissed the petition by declining leave to appeal.

What did the court decide?

Leave to appeal is declined; the criminal leave petition is dismissed.

Muthoot Leasing & Finance Ltd. Vs Vinu Soman — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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WEDNESDAY, THE 6TH DAY OF MARCH 2013/15TH PHALGUNA 1934

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Crl.L.P..No. 138 of 2013 ()

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(AGAINST THE JUDGMENT IN CC.587/2009 OF JUDICIAL FIRST CLASS MAGISTRATE , KAYAMKULAM DATED 23-02-2012)

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PETITIONER/OMPLAINANT:

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MUTHOOT LEASING & FINANCE LTD

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NOW RENAMED AS MUTHOOT VEHICLE AND ASSET FINANCE LTD. KURIAN TOWERS, OPPOSITE SARITHA THEATRE, BANERJI ROAD ERNAKULAM REPRESENTED BY ITS POWER OF ATTORNEY HOLDER SREEDEVI RADHAKRISHNAN, AGED 27, W/O. SREEKANTH, PAYYAPILLY HOUSE, ALIYAR ROAD MALIPURAM P.O., COCHIN.

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BY ADV. SRI.S.NIDHEESH

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RESPONDENTS/ACCUSED AND STATE:

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1. VINU SOMAN, AGED 35 YEARS S/O. SOMAN NAIR, ASWATHY, VANDANAM P.O. ALAPPUZHA.PIN-688001

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2. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.PIN-682031

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R2 BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 06-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.L.P. No.138 of 2013

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Dated this the 6^th day of March, 2013

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O R D E R

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The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') is the appellant since he is aggrieved by the judgment dated 23.02.2012 in C.C.No.587 of 2009 of the court of Judicial First Class Magistrate, Kayamkulam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

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The case of the complainant is that the accused availed a vehicle loan from the complaint company and in discharge of the liability under the above transaction, the accused executed and issued Ext.P1 cheque which when presented for encashment dishonoured for the reason founds insufficient and the accused has not repaid the amount in respect of the statutory notice served on him and, therefore, according to the complainant the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act.

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During the trial of the case PW1 was examined from the

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Crl.L.P. No.138 of 2013

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side of the complainant and produced Exts.P1 to P8 documents. No evidence either oral or documentary produced from the side of the defence. After considering the entire evidence and materials, the trial court has found that the prosecution case about the execution of Ext.P1 cheque cannot be believed and prosecution has failed to prove its case beyond reasonable doubt and accordingly held that it is not possible to hold that the accused issued Ext.P1 cheque to the complainant in discharge of legally endorsement of debt. Accordingly the accused is acquitted under Section 255 (1) of Cr.P.C. To challenge the above finding and order of acquittal, the complainant preferred this petition seeking leave of this Court.

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I have heard Sri.Nidheesh.S the learned counsel for the petitioner and I have perused the judgments sought to be impugned.

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Learned counsel for the petitioner vehemently submitted that though the accused has taken a contention to prove that there was no transaction between the complainant and the accused, the accused has not disputed the signature that contained on Ext.P1 cheque and therefore the trial court is not

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Crl.L.P. No.138 of 2013 3

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correct in its finding and acquitting the accused. It is also the contention of the counsel for the petitioner that the petitioner/complainant is entitled to get statutory presumption since the accused has admitted his signature in Ext.P1 cheque.

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I am unable to sustain the above contentions especially in the light of the particular facts and circumstances involved in the present case and the evidence on materials referred to by the learned Magistrate in the judgments in question. I have already indicated substance of the allegation raised by the complainant against the accused. The case of the accused is that while denying the execution and issuance of Ext.P1 cheque, according to him he had issued 6 signed blank cheque at the office of the complainant at Alappuzha when he availed loan to purchase vehicle bearing registration No.KL-07-AA-4065 and Ext.P1 cheque is one of such signed blank cheques entrusted with the complainant. The learned Magistrate considered the case in the above backdrops of the defence taken by the accused. After physical verification of Ext.P1 cheque the learned Magistrate has found that even though PW1 deposed that cheque was written by the accused himself, in Ext.P1 cheque it is seen that the features

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Crl.L.P. No.138 of 2013

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of the cheque would not support the fact that the process of execution was simultaneous act since according to the learned Magistrate apparently the ink used for putting the signature is different from the the ink used for writing the entries. Learned Magistrate has further observed that even the ink used for writing the name of the payee is different from the ink used for writing the amount in figures and words. The above finding of the leaned Magistrate is absolutely correct beyond the controversy, since the same is not disputed. Therefore, it cannot be said that Ext.P1 cheque was executed and issued by the accused as claimed by the complainant. According to me the physical features of Ext.P1 cheque as observed by the learned Magistrate tally with the case advanced by the accused that Ext.P1 cheque is one among the 6 signed blank cheque obtained by the complainant when the accused availed a loan for purchasing the vehicle. So according to me the complainant has miserably failed to prove the execution of the cheque. It goes without saying that it is the bounden duty of the complainant to prove the execution of the cheque to fix the criminal liability on the accused under Section 138 of the Negotiable Instruments Act. But in the present case,

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Crl.L.P. No.138 of 2013

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that part of the burden of the complainant is not discharged effectively and properly. If that be so, I find no fault with the finding of the learned Magistrate that the complainant failed to prove the execution of the cheque in question and not extending the presumption under Section 139 of the Negotiable Instruments Act in favour of the complainant. Under the above context, according to me even if an appeal is entertained there is little scope for interference with the findings of the court below and order of acquittal. 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”.

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Thus on execution of facts and circumstances involved in the case on hand in the light of the above dictum according to me

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Crl.L.P. No.138 of 2013

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the petitioner has miserably failed to prove a prima facie case in support of its challenge against the findings of the court below and order of acquittal. Therefore the petitioner is not entitled to get the relief as sought for and declining the leave, this petition is dismissed.

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mns

Muthoot Leasing & Finance Ltd. v. Vinu Soman

Case brief

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Muthoot Leasing & Finance Ltd. v. Vinu Soman

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