Dismissed

Binu v. Pushpa

Kerala HC19 Feb 2013Crl.L.P./49/2013

Case brief

AI extract

What is this about?

Appellant filed leave petition under CrPC to appeal acquittal of accused for cheque dishonour. Court observed prosecution failed to prove execution of cheque due to inconsistencies regarding transaction date and signature discrepancies on the cheque itself. Leave petition dismissed as findings were not perverse.

What did the court decide?

Leave petition to appeal acquittal under Section 138 of the NI Act is dismissed for lack of prima facie case against the trial court's findings.

Binu Vs Pushpa — 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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TUESDAY, THE 19TH DAY OF FEBRUARY 2013/30TH MAGHA 1934

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Crl.L.P..No. 49 of 2013

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AGAINST THE ORDER/JUDGMENT IN CC.532/2008 of J.M.F.C., KAYAMKULAM DATED 08-05-2012

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APPELLANT/COMPLAINANT:

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BINU, AGED 29 YEARS, S/O. MUHAMMED KUNJU, KAROOR CHIRAYIL VEEDU, CHERAVALLI MURI, KAYAMKULAM VILLAGE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MUHAMMED KUNJU, AGED 62 YEARS, S/O. KOYAKUTTY, KAROOR CHIRAYIL VEEDU, CHERAVALLI MURI, KAYAMAKULAM VILLAGE, ALAPPUZHA DISTRICT.

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BY ADV. SMT.S.L.SYLAJA

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RESPONDENTS/STATE & ACCUSED :

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PUSHPA, AGED 35 YEARS, W/O. RAVI, RAVI NIVAS, MALAMEL BHAGAM MURI, KEERIKKAD VILLAGE, ALAPPUZHA DISTRICT.

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY ADV. SRI.S.SHANAVAS KHAN

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R2 BY PUBLIC PROSECUTOR -SRI.SURESH.N.

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THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 19-02-2013, 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.49 of 2013

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Dated this the 19^th day of February, 2013

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ORDER

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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.

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The case of the complainant is that the accused borrowed a sum of `1,00,000/- and towards the discharge of the said liability the accused issued Ext.P1 cheque dated 27/07/2008 which, when presented for encashment was dishonoured as 'account closed'. It is the further case of the complainant that, though a statutory notice was served on the respondent, the amount covered by the dishonoured cheque has not paid and therefore the

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Crl.L.P.No.49/2013

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accused has committed the offence punishable under Section 138 of the N.I. Act. During the trial of the case, PWs.1 and 2 were examined from the side of the complainant and Exts.P1 to P6 were marked. Ext.C1 report of expert is marked as court Exhibit. No evidence, either oral or documentary was adduced from the side of the accused. After considering the entire evidence and materials, the trial court has found that, the accused cannot be said to have issued Ext.P1 cheque to the complainant in discharge of the debt of `1,00,000/-. Consequently, the accused is found not guilty and he is acquitted under Section 255(1) of Cr.P.C. In order to challenge the above finding and the order of acquittal, the petitioner has proposed to file an appeal and therefore, he seeks leave of this Court.

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I have heard Adv.Smt.Sylaja, learned counsel for the petitioner and Adv.Sri.Shanavas Khan for the first respondent.

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The learned counsel for the petitioner vehemently submitted that the cheque in question covers an amount of

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Crl.L.P.No.49/2013

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`.1,00,000/- and the same contained the signature of the accused. The said facts are proved from the evidence of PWs.1 and 2 and thus the execution of Ext.P1 cheque stands proved but the learned Magistrate on an erroneous conclusion found against the complainant and in favour of the accused. It is also the submission of the learned counsel that, some minor variations or discrepancies in the evidence of PW.1 cannot be taken as a ground to acquit the accused, since PW.1 is the power of attorney holder of the complainant, who was at the age of 65 years while making the deposition before the court and therefore those discrepancies are only as a result of his over age. The learned counsel for the respondent submitted that, the execution of cheque is not properly proved by the complainant and therefore the trial court is fully justified in its finding and acquitting the accused.

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I have carefully considered the arguments advanced by the learned counsel for the petitioner and the respondent and I have gone through the judgment of the trial court.

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Crl.L.P.No.49/2013

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In paragraph 11 of the judgment the learned Magistrate has elaborately considered the evidence of PW.1 with respect to the transaction. The learned Magistrate has specifically observed that, PW.1 claims that he was present in the house of his son/the complainant, when the accused received the money and when the accused issued Ext.P1 cheque. The learned Magistrate has found that, as per the prosecution case, the accused has borrowed the amount on 07/02/2008 but on that day no document or security was obtained from the accused and no evidence or materials are adduced by the complainant to justify him to pay such an amount without getting any security. The learned Magistrate has further found that, though Ext.P1 cheque was given 5 months later on 27/07/2008, the version of PW.1 is not consistent with the date of the issuance of the cheque. The learned Magistrate has found that, initially PW.1 stated that the cheque was issued on 07/02/2008, the date on which the amount was allegedly given. But, subsequently, he deposed that, the cheque was issued on

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Crl.L.P.No.49/2013

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27/07/2008. The learned Magistrate has also found that, PW.1 thereafter retracted from his previous statements and pretended ignorance about the date of issuance of the cheque and PW.1 stated that the exact date known to his son/the complainant only. So, regarding the transaction and the issuance of the cheque, absolutely there is no reliable and acceptable evidence.

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In paragraph 12 of the judgment the learned Magistrate has found that, on physical verification of Ext.P1 cheque, it is seen that, the signature of the cheque is in blue ink, whereas other entries are made in black, and handwriting in the cheque is also different. So, on the basis of the above physical evidence, the learned Magistrate came into the conclusion that, the said facts, prima facie, show that the person, who signed the cheque cannot be the author of the entries in the cheque. Therefore, the learned Magistrate further considered the evidence of PWs.1 and 2 and came into a conclusion that as per the version of PW.1, he does not know who is the author of the entries in the cheque and what stated in the court is that, the accused

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has signed the cheque in his presence. He further stated that, the accused put the date '27/07/2008' in the cheque. The evidence of PW.2 shows that, he had not seen the accused putting date on Ext.P1 cheque. So, having regard to the above discrepancies in the evidence of PWs.1 and 2 and having physically verified Ext.P1 cheque, the learned Magistrate came to the conclusion that, the prosecution case regarding the execution of Ext.P1 cheque cannot be considered as believable story and the facts and circumstances of the case suggestive of serious doubt regarding the creation of cheque in the present form. In the light of the above facts and circumstances and evidence and materials referred to above, it can be seen that, the prosecution has miserably failed to prove the transaction and issuance of cheque beyond reasonable doubt and therefore, the learned Magistrate refused to accept the case of the complainant and found that the accused cannot be said to have issued Ext.P1 cheque to the complainant in discharge of the debt.

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Crl.L.P.No.49/2013

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Thus, the above findings of the court below are based upon the evidence and materials on record and therefore, it cannot be said that, those findings are perverse or illegal. If that be so, according to me, even if an appeal is entertained, there is not even a remote scope to interfere with the findings of the court below.

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Hence, the petitioner has miserably failed to make out a prima facie case in support of the challenge against the findings of the court below and order of acquittal. Therefore, according to me, there is no merit in this leave petition and accordingly the same is dismissed.

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V.K.MOHANAN, JUDGE

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skj

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True copy

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P.A. to Judge

Binu v. Pushpa

Case brief

What is this about?

What did the court decide?

Binu v. Pushpa

Case brief

What is this about?

What did the court decide?

What the court decided

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