IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 1159 of 2010()
1. BIJU JOHN,
... Petitioner
Vs
1. SARO INDUSTRIES,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.P.P.JACOB
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :09/12/2010
O R D E R
K. HEMA, J
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Crl.L.P.No. 1159 OF 2010
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Dated 9th day of December, 2010
O R D E R
Petition to grant leave to appeal.
2. Appellant filed a complaint against first respondent
alleging offence under section 138 of Negotiable Instruments Act
on the allegation that the accused owed Rs.2,00,000/- to the
complainant and when the amount was demanded, he issued a
cheque for the said amount, drawn on the account maintained in
his bank. The cheque, on presentation, bounced for want of
sufficient fund. A lawyer notice was issued demanding payment.
Notice was accepted but amount was not paid. Hence, a
complainant was filed.
3. Complainant examined himself as PW1 and marked
Ext.P1 to P6. The accused examined DW1 to DW3 and marked
Ext.D1 to D5 on his side. According to him a signed blank cheque
was misused by complaint. The cheque was issued to a person
called “Universal Appachan” and not to the complainant. Accused
took up a specific contention relating to a property transaction
Crl.L.P. No.1159/10 2
with another person and also marked documents to establish that
the cheque involved in this case is a blank one when he signed
the same.
4. The trial court considered various aspects in detail in the
judgment and found that the complainant could not identify the
accused while a photograph of him was shown to PW1 while he
was examined in court in the absence of accused. Accused was
exempted from appearance and learned defence counsel showed
a group photograph, from which complainant was asked to
identify the accused. But he could not be identified by PW1. The
trial court on analysis of of evidence adduced by accused and
considering the probability of the same found that case set up by
accused is probable and that the evidence adduced by
complainant was unacceptable. Various reasons are shown in
the order under challenge which are sound and proper. I do not
find any reason to interfere with the order.
5. Learned counsel for the appellant submitted that only for
the reason appellant could not identify the accused from the
photograph, evidence of PW1 may not be discarded and accused
ought not to have been acquitted. On going through the order
under challenge, I find that there are several reasons to persuade
Crl.L.P. No.1159/10 3
the trial court to come to a finding that complainant has not
proved the case. The failure to identify the accused is also taken
as a very strong reason. I do not find that this is a fit case to
grant leave. Hence I am not inclined to grant leave.
This petition is dismissed.
K. HEMA, JUDGE.
Sou.