Dismissed

B.L.Jayaraj Rao v. P.Aboobacker

Kerala HC18 Mar 2013Crl.L.P./186/2013

Case brief

AI extract

What is this about?

The High Court of Kerala in a Criminal Leave Petition dismissed the petitioner's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act. Upholding the trial court's view that the cheque was not issued for a legally enforceable hand loan but related to grocery purchases, the court found no merit in the appeal.

What did the court decide?

The Criminal Leave Petition was dismissed; judgment and order of acquittal of the accused remained valid.

B.L.Jayaraj Rao Vs P.Aboobacker — 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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MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934

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Crl.L.P..No. 186 of 2013 ( )

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(AGAINST THE JUDGMENT IN CC.187/2008 of JUDICIAL FIRST CLASS MAGISTRATEI,HOSDRUG DATED 31-08-2009) PETITIONER/COMPLAINANT:

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B.L.JAYARAJ RAO

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AGED 63 YEARS, S/O.M.M.LAKSHMANA RAO, APEX TRADERS ALAMIPALLI, HOSDURG TALUK, KASARGOD DISTRICT.

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BY ADV. SRI.SURESH KUMAR KODOTH

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RESPONDENT/ACCUSED AND STATE:

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1. P.ABOOBACKER

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AGED 56 YEARS, PROP. SABANA BAKERY, KALLOORAVI KAHANGAD VILLAGE & POST, HOSDURG TALUK KASARGOD DISTRICT.

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2. STATE OF KERALA,

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REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18-03-2013, 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.186 of 2013

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Dated this the 18^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 31.08.2009 in C.C.No.187 of 2008 of the court of Judicial First Class Magistrate-I, Hosdurg, 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 accused borrowed an amount of Rs.30,000/- from the complainant and in discharge of the said liability the accused has issued Ext.P1 cheque dated 29.08.2007 for an amount of Rs.30,000/- which when presented for encashment returned dishonoured stating “exceeds arrangements” and thereafter the complainant sent a statutory notice to the accused. The accused has not repaid the amount and, therefore, he had committed the offence punishable under Section 138 of the Negotiable Instruments Act.

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During the trial of the case the complainant is examined

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Crl.L.P.No.186 of 2013

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as PW1 and produced Exts.P1 to P4 documents and Exts.D1 to

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D5 were marked from the side of the accused. There were no witness were examined.

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The trial court found that Ext.P1 cheque was not issued by the accused to discharge only legally enforceable debt as alleged by him and consequently on finding that accused is not guilty, he is acquitted under Section 255(1) of Cr.P.C. To challenge in the above finding and order of acquittal the petitioner seeks leave of this Court for filing an appeal.

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I have heard Sri.Suresh Kumar Kodoth, the counsel for

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the petitioner and I have perused the judgment of the trial court.

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Counsel for the petitioner vehemently submitted that it is an admitted fact that the complainant and accused has got the acquaintance and there was frequent transaction among them and it is the further submission of the learned counsel that the execution of the cheque is admitted by the accused and thus according to the learned counsel in view of the above facts and circumstances of the case, the findings of the court below is incorrect and, therefore, the petitioner is entitled to get leave as prayed for.

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Crl.L.P.No.186 of 2013

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I have carefully considered the arguments of the counsel appearing for the petitioner. As I indicated earlier the specific case of the complainant is that the accused borrowed a sum of Rs.30,000/- and towards the discharge of the said liability the accused issued Ext.P1 cheque which when presented for encashment dishonoured. Whereas the defence taken by the accused is that he had issued three cheques; for a sum of Rs.60,000/-, including Ext.P1 towards the amount due in connection with the purchase of grocery from from PW1's shop. According to the accused, he had already paid Rs.45,000/- and the balance is only an amount of Rs.15,000/-. According to the defence, the complainant refused to return three cheques issued earlier though he had paid the balance amount of Rs.15,000/and the complainant has filed a civil suit also against the accused.

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The trial court considered the entire case in the back drops of the case advanced by the complainant as well as the accused. According to the learned Magistrate possibility of lending huge amount as hand loan again and again to the accused who was not keeping his words cannot be believed at all.

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Crl.L.P.No.186 of 2013

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So, in the light of the evidence of defence version and in the light of the evidence available in favour of the defence the learned Magistrate has found that there is some dispute with respect to the payment made by the accused to PW1 towards the articles purchased from the shop of PW1. According to the learned Magistrate, suppressing the fact that PW1 approached the court blow, he filed a present case stating that Ext.P1 cheque was issued by the accused towards the amount given as hand loan. According to the learned Magistrate the deposition of PW1 coupled with Exts.P4 and D4 and D5 shows that accused has not borrowed any amount as hand loan. Possibility of giving Ext.P1 amount as hand loan again while amount of Rs.30,000/- and Rs.20,000/- borrowed on 29.08.2007 respectively were pending is very remote. I find no fault with the above finding of the learned Magistrate in the light of the evidence and materials referred to by the learned Magistrate in the judgment. The complainant has suppressed the fact about the dealings between the complainant and the accused and connected with the sales of

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grocery items. Suppressing the said fact the complainant approached the trial court, putting up a claim that Ext.P1 cheque

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Crl.L.P.No.186 of 2013

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is connected with a hand loan. From the evidence that Exts.D4

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and D5 it is clear that the complainant has already approached the civil court for the realisation of the amount. In the above back drops of the case according to me the finding of the learned Magistrate is correct and the same cannot be treated as perverse or illegal so as to interfere in appeal.

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In a recent decision reported in Pudhu Raja and

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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

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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 ”. Thus going by the judgment of the trial court and particularly the facts and circumstances involved in the case in the light of the above decision of the Supreme Court it can be seen that the petitioner has miserably failed to show any compelling or substantial circumstances to interfere with the order of acquittal recorded by the trial court and the petitioner has also failed to show that the

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Crl.L.P.No.186 of 2013

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judgment of the trial court and the finding of the learned Magistrate contained therein are perverse or illegal.

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In the above circumstances, this petition is devoid of any

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merit and accordingly, the same is dismissed.

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V.K.MOHANAN

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JUDGE

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mns

B.L.Jayaraj Rao v. P.Aboobacker

Case brief

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B.L.Jayaraj Rao v. P.Aboobacker

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