The High Court of Kerala dismissed a Criminal Leave Petition seeking to challenge an acquittal under S. 138 NI Act. Finding the appeal lacked merit and the trial court's conclusion was supported by evidence, the court declined to grant leave to appeal.
Leave to file appeal declined; petition 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
MONDAY, THE 18TH DAY OF MARCH 2013/27TH PHALGUNA 1934
Crl.L.P..No. 187 of 2013 ()
(AGAINST THE JUDGMENT IN ST.233/2011 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT - III, KOLLAM DATED 13-12-2012 PETITIONER/COMPLAINANT:
A. ABDUL WAHAB PROPRIETOR, ARABIAN JEWELERS, HEAD OFFICE KOLLAM S/O.MOHAMMED KUNJU PUTHENVEEDU PULIYOOR VANCHI, THAZHAVA P.O. KARUNAGAPALLY.
BY ADV. SRI.SIRAJ KAROLY
RESPONDENT/ACCUSED:
1. SANAL KUMAR THYKOOTATHIL HOUSE, KULANADA, KULANADA P.O. PATHANAMTHITTA-683503.
2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SRI.N.SURESH
THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 18-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.L.P.No.187 of 2013
Dated this the 18th day of March, 2013
O R D E R
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 13.12.2012 in S.T.No. 233 of 2011 of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.
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evidence adduced through the examination of PW1 and DW1, the defence version is more probable is incorrect since the evidence of DW1 and Exts.D1 and D2 only shows that after purchase of the gold ornaments and on non-payment of price amount the complaint has filed and which action of the complainant is not prohibited or not illegal and, therefore, the said fact would not go against the case of the complainant. When this Court put to the counsel for the petitioner about the finding of the learned Magistrate that contained in paragraph 10 of the judgment sought to be impugned, the counsel submitted that in a proceedings for the offence under Section 138 of the Negotiable Instruments Act the complainant is not expected to state all the facts including the date of the transaction, place of execution of the cheque and issuance of the cheque etc. So, according to the counsel, the issuance of the cheque at Kollam Branch will not adversely affect the case of the complainant since the same is not impermissible. Therefore, the counsel submitted that the findings of the court below is incorrect and in case an appeal is entertained there is every possibility for interfering with the finding and order of acquittal.
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the police after intimidating him. According to the defence such cheque was presented after making entries therein and,
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therefore, the said cheque is not supported by any consideration. The learned Magistrate considered the case of the complainant in the back drops of the above case of the defence. In paragraph 10 of the judgment the learned Magistrate has observed that the complaint does not contain the date of which the gold ornaments were allegedly purchased by the accused. In paragraph 7 of the judgment it is also recorded that subsequent to the examination of PW1, he was recalled and re-examined on 18.04.2012 and during that time Ext.P7 Balance Sheet and Profit and Loss Account was produced and about those documents it is found that Exts.P7 to P10 are Balance Sheet and Trading Profit and Loss Account of distinguished periods from 2008 to 2011. Ext.P11 is a copy of the retail invoice dated 10.11.2007 allegedly issued to the accused. It is also found in paragraph 8 that PW1 has stated that he knows one Girishkumar and he has also admitted that the said Girishkukar is a debtor to pay amounts to the complainant jewelery for the price of the ornaments purchased on credit. PW1 has denied the suggestion that the accused is a news reporter and also denied the suggestion that the said Girishkumar introduced by the accused and he purchased gold from the
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jewelery. PW1 has also denied the suggestion in cross examination that a complaint was preferred against the said Girishkumar and the accused before the police officials. In paragraph 9 of the judgment the trial court has elaborately considered the defence evidence. After discussing the defence evidence and the version of the complainant the learned Magistrate has found that Ext.D1 is reliable and it proves that complainant had preferred a petition before the police on 13.03.1007 against the accused herein. In paragraph 11 of the judgment, the learned Magistrate has found that Ext.D1 proves that the complainant filed a petition against the accused before the Circle Inspector of Police Pandalam on 13.03.2007, alleging non payment of price of the gold ornaments given on credit. So according to the learned Magistrate, in the light of the said fact, the alleged transaction squarely taken place before 13.03.2007 and the complainant has no case that he has earlier transaction with the accused. So on the basis of the above facts and in that context the learned Magistrate has concluded that the allegation that the accused purchased gold ornaments from the jewelery from the complainant on 10.10.2007 and issued Ext.P2 cheque
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on the said date, is proved as false.
the office to which returns submitted and according to the learned Magistrate merely because the said documents are
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attested by a Chartered Accountant, the same cannot be treated as an authentic one. The learned Magistrate has also found that the complainant has not produced any certified copy of the documents from the CTO, Pathanamthitta or or as he could have summon the documents from the CTO, Pathanamthitta. It is also found that Ext.P11 does not contain the details of the gold ornaments purchased.
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complaint to the effect that the gold was purchased from the Pathanamthitta Branch and the cheque was issued in the Kollam Branch of the complainant jewelery. If there is such a pleading the evidence of PW1 can be appreciated in that sense. The above contention of PW1 goes against the specific case in the complaint that the ornaments was purchased from the Pathanamthitta Branch and simultaneously issued the cheque.
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If that be so, even if an appeal is entertained there is little scope to interfere with the same particularly with respect to the order of acquittal recorded by the trial court in favour of the accused.
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perverse or illegal. In the above circumstances, the petition is
devoid of any merit and accordingly, declining the leave the same
is dismissed.
V.K.MOHANAN
JUDGE
mns
3 issues framed by the court
Whether the petitioner could make out a prima facie case to challenge the trial court's findings of acquittal.
Whether the trial court's order of acquittal was perverse or illegal.
Whether the leave to appeal under Cr.P.C. Section 255(1) shall be granted.
Colour shows how this judgement treated each authority
Pudhu Raja and another Vs. StateRelied on¶57
Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} · Who else cites this
2 provisions across 2 enactments
A. ABDUL WAHAB
SANAL KUMAR THYKOOTATHIL
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
