The Court dismissed a Criminal Leave Petition seeking special leave to appeal an order of acquittal under Section 255(1) Cr.P.C. in a cheque dishonour case, holding that the trial court's findings were supported by evidence and no extraordinary circumstances warranted interference.
Special leave to file appeal against the order of acquittal is not granted.
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
WEDNESDAY, THE 13TH DAY OF MARCH 2013/22ND PHALGUNA 1934
Crl.L.P..No. 174 of 2013
AGAINST THE ORDER/JUDGMENT IN CC.23/2008 of J.M.F.C.-I, PERAMBRA DATED 24-12-2008
PETITIONER/COMPLAINANT:
JAYAN.K.K., AGED 35 YEARS,
S/O.KUNHIKRISHNAN NAIR, KANIYAMKANDIYIL, MEETHEL HOUSE, MENHANYAM KOYILANDY.
BY ADVS.SRI.PULIKKOOL ABUBACKER
SRI.ZUBAIR PULIKKOOL
RESPONDENTS/ACCUSED & STATE:
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R1 BY ADV. SRI.P.R.SREEJITH R1 BY ADV. SRI.M.PROMODH KUMAR R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 13-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.L.P.No.174 of 2013
Dated this the 13th 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.
Crl.L.P.No.174/2013
: 2 :
accused has not repaid the amount in spite of a statutory notice served on him and therefore the accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case the complainant himself was examined as PW.1 and produced Exts.P1 to P6. The accused himself got examined as DW.1 and produced pass book. The trial court finally found that, it is difficult to accept the version of PW.1 that the accused borrowed `60,000/- and issued Ext.P1 cheque in discharge of the said amount and accordingly the accused is acquitted. It is the above finding and order of acquittal proposed to challenge by filing an appeal and therefore prays for leave of this Court.
in the N.I.Act for presumption in favour of the
Crl.L.P.No.174/2013 : 3 :
complainant. Another point raised by the learned counsel is that the trial court acquitted the accused on the ground that the complainant has no source of income to pay such an amount as claimed by him and according to the learned counsel such a consideration is absolutely unwarranted and irrelevant.
1,00,000/- conducted by Sree Guruvayoorappan chit fund and when he bid the chitty received the chit amount of 75,000/-, and as demanded by the Manager of Sree Guruvayoorappan chit funds, he issued two blank signed cheques and with respect to the repayment there was differences of opinion between himself and the Manager and under the above circumstances PW.1 who is an employee of Sree Guruvayoorappan chit funds, misused one of suchCrl.L.P.No.174/2013
: 4 :
cheques for the purpose of present case. The trial court in paragraph 8 of its judgment has found that according to the defence except the name and signature in Ext.P1 all other entries in Ext.P1 are not in the handwriting of the accused and it is further found that in the complaint as well as in the evidence of PW.1 has stated that the accused signed in Ext.P1 in his presence and issued the cheque in his favour. The learned Magistrate has found that in the light of the said version of the complainant with respect to the execution and issuance of Ext.P1 cheque, the accused filed petition C.M.P.No.1368 of 2008 to send the cheque to a handwriting expert for expert opinion. The learned Magistrate has further found that, at this juncture the complainant has deviated from his version and stated that except the name and signature in Ext.P1, the other entries are not written by the accused. Moreover, PW.1 has admitted in the evidence that the name and signature of the accused and the other entries in the cheque are written in two different handwritings. It would show that even according to PW.1, Ext.P1 was
Crl.L.P.No.174/2013
: 5 :
not filled up by the accused.
Crl.L.P.No.174/2013
: 6 :
execution of the cheque in question. Therefore, according to me, the learned Magistrate came into those findings after the due appreciation of evidence and materials on record who got an opportunity to observe the demeanor of the parties appeared before him. Thus, according to me, the finding of the court below is supported by evidence and materials on record. Therefore, the same cannot be treated as perverse or illegal.
“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.174/2013
: 7 :
interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
Thus, on examination of the facts and circumstances involved in the case in the light of the dictum laid down by the Hon'ble Apex Court in the decision it can be seen that the petitioner has miserably failed to show any exceptional or substantial reason to interfere with the order of acquittal or to show that the finding of the court below of the judgment is perverse or illegal. If that be so, even if an appeal is entertained there is little scope for interference with that finding and order of acquittal. Therefore, this petition fails and accordingly the same is dismissed.
Sd/- V.K.MOHANAN, JUDGE
skj
True copy P.A. to Judge
3 issues framed by the court
Whether special leave to appeal against an order of acquittal under Section 255(1) Cr.P.C. in a prosecution for Section 138 NI Act should be allowed.
Whether the appellate court should interfere with a finding of acquittal supported by evidence where the prosecution fails to prove the transaction.
In what exceptional circumstances can an appellate court interfere with an order of acquittal under Section 378(4) Cr.P.C.
Colour shows how this judgement treated each authority
Pudhu Raja & Another Vs. State represented by Inspector of PoliceExplained¶44
(2013) 1 SCC (Crl.) 430=2012 (11)SCC 196, Pudhu Raja & Another Vs. State represented by Inspector of Police · Who else cites this
3 provisions across 2 enactments
Jayan.K.K.
Muneer.K.V.
State of Kerala
V.K.Mohan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court