Sree Gokulam Chit and Finance Co. (P) Ltd. vs Krishnankutty and State of Kerala

Justice V.K. Mohanan

The complainant in a prosecution for the offence u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the N.I. Act'') is the petitioner herein, who seeks special leave u/s 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 u/s 255(1) of the Cr.P.C. The case of the complainant is that the accused was a subscriber of chitty bearing No. J2E/486/JMM with ticket No. 11 and towards the discharge of the liability, the accused issued Ext.P1 cheque dated 15.1.2008 for an amount of Rs. 53,195/- and when the said cheque was presented for encashment, the same dishonoured for want of sufficient fund in the account of the accused and the accused has not repaid the said amount in spite of statutory notice served on him. Therefore, according to the complainant, the accused has committed the offence punishable u/s 138 of the N.I. Act. During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P8. Though no witness was examined from the side of the defence, Ext.D1 passbook was marked. Finally, the trial court has held that Ext.P1 cheque is not supported by consideration to the extent shown therein and accordingly found that the accused has rebutted the presumption raised u/s 139 of the N.I. Act. Consequently, the accused is acquitted u/s 255(1) of the Cr.P.C. It is the above finding and order of acquittal sought to be challenged for which the petitioner seeks leave of this Court.

The learned counsel for the petitioner submitted that the execution of cheque has been proved and therefore, the trial court ought not have entered into the finding with respect to the liability of the accused and consideration as such. It is the further submission of the learned counsel that all the payments made by the accused were entered in Ext.P8 ledger and the amount shown in Ext.P1 cheque was calculated without considering the dividend since the accused was not entitled for the same as he was a defaulter. So, according to the learned counsel, Ext.P8 would show the liability of the accused whereas the counsel for the respondent submitted that the evidence of PW1 himself probabilise the case of the accused and he had miserably failed to give an account as to how an amount of Rs. 53,195/- is shown in Ext.P1 cheque as the amount due to the complainant. Therefore, according to the learned counsel, the trial court is fully justified in its finding that the cheque is not supported by consideration to the extent shown therein.

I have carefully considered the arguments advanced by him. Learned counsel for the respondent made available to me a copy of the deposition of PW1. It is relevant to note that the learned Magistrate after considering the deposition of PW1 particularly in page No. 6 of its deposition, found that the accused has already paid a sum of Rs. 67,000/- and if that be so, the amount due to the complainant will be Rs. 51,195/-, but the cheque amount is Rs. 53,195/-. In the deposition of PW1, during his cross-examination after inviting his attention to Ext.P8, he has stated as follows:-

Ext.P8-53195 - 53195.

He had also deposed that

Ext.D1 divident 67,000/-

The above deposition of PW1 shows that the amount shown in Ext.P1 cheque is not correct and the said amount is actually not due to the complainant. Therefore, the finding of the court below that the cheque amount is not actually due to the complainant and Ext.P1 cheque is not supported by the consideration to the extent shown therein is correct and the learned Magistrate is fully justified in the backdrops of the above evidence, especially the admission of PW1. Therefore, it cannot be said that the finding of the court below is perverse or illegal.

In a recent decision of the Apex Court reported in State of Rajasthan v. Darshan Singh @ Darshan Lal (2012(4) Sup 72), the Hon''ble Apex Court has held:-

In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of 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 his innocence.

Thus, on examination of the facts and circumstances involved in the present case, in the light of the above dictum laid down by the Apex Court in the decision cited supra, I find no scope for any interference, even if an appeal is entertained against the above finding and the order of acquittal and there is no substantial or compelling reason to interfere with the order of acquittal recorded by the learned Magistrate or to show that the judgment is perverse.

Therefore, the petitioner has miserably failed to make out a case to grant special leave u/s 378(4) of Cr.P.C. Accordingly, this Criminal Leave Petition is dismissed.