IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 1139 of 2010()
1. M/S.SREE GOKULAM CHIT AND FINANCE CO.(P)
... Petitioner
Vs
1. ABDUL HASSAN, S/O.MEERAN PILLAI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.S.BABU
For Respondent :SRI.RAJESH P.NAIR
The Hon'ble MRS. Justice K.HEMA
Dated :02/12/2010
O R D E R
K.HEMA, J.
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Crl. L.P. No.1139 of 2010
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Dated 2nd December, 2010.
O R D E R
This petition is filed for granting special leave to file
appeal against an order of acquittal.
2. The petitioner filed a complaint before the
Magistrate Court against first respondent herein, alleging
offence under Section 138 of the Negotiable Instruments Act,
on the allegation that the accused/first respondent was a
subscriber in two chitties with the stake of Rs.3,00,000/- each in
favour of the complainant, which is a company dealing in chitty
transactions. After receiving the prize money, accused
defaulted payment. Towards discharge of the defaulted
payment, he issued a cheque for Rs.4,36,000/- drawn on
24.12.2007 from the account maintained by him in State Bank
of Travancore. The complainant presented the cheque for
collection, but it was returned for want of sufficient funds.
Therefore, a lawyer notice was issued demanding payment.
But, the notice was returned with the remarks “addressee
unclaimed” and the amount was not paid. Hence, the
complaint.
Crl. L.P. No.1139/10 2
3. To prove the prosecution case, PW1 was
examined and Exts.P1 to P8 were marked. The accused
examined DW1 and marked Exts.D1 and D2 on his side.
According to the accused, he had subscribed for chitty and he
also received Rs.6,00,000/- in total, out of the two chitty deals.
He had to pay future subscriptions. He paid the entire
subscriptions as per Exts.D1 and D2 chitty pass books. In spite
of the same, complainant filed the complaint, misusing the
blank cheque, which was handed over as security, while
receiving the money.
4. Learned counsel for petitioner argued that
accused was acquitted mainly for the reason that the
complainant failed to produce documents, evidencing the
transaction. The complainant is prepared to produce the
documents and an opportunity may be given to establish the
case, it is submitted. It is further pointed out that trial court
found that the amount, which is in balance to be paid is lesser
than the amount shown in the cheque and hence, the
complainant’s case is improbable. According to petitioner, this
Crl. L.P. No.1139/10 3
finding is not correct, since accused is liable to pay interest
also. Adding up the interest to the amount due, it will be the
amount, which is covered by the cheque and in such
circumstances, the findings of the court below are wrong and
unsustainable, it is submitted.
5. Learned counsel for first respondent argued that
the trial court has considered the evidence and facts and
circumstances of this case in detail in paragraphs 11 to 14 and
acquitted the accused giving valid reasons. The complainant
was given sufficient opportunity to produce documents.
Though several adjournments were given for this purpose, the
complainant failed to produce the documents and hence, there
is no justification in giving more opportunity, it is submitted.
6. It is also argued by learned counsel for accused
that the pass books issued by the company, which are marked
as Exts.D1 and D2 and the admissions made by PW1, who was
examined on behalf of the company would clearly show that the
claim made by the complainant that an amount of Rs.4,36,000/-
is still due to the complainant is absolutely false. The accused
Crl. L.P. No.1139/10 4
paid the entire amount which is due to the complainant but a
complaint is filed against him misusing a blank cheque, which is
handed over as security, while receiving the money due to the
accused, in the two chitty transactions, it is submitted.
7. On hearing both sides and on going through the
order under challenge, I find that the trial court has tested the
evidence and materials available on record against probability
and on proper appreciation of evidence, it was found that
complainant failed to substantiate the transaction. The court
also found improbability in the case set up by the complainant.
Regarding the statement of accounts and the transaction, trial
court observed as follows :-
“Here comes the importance of statement of accounts
maintained by complainant. During cross examination PW1 do
admit that company is properly maintaining accounts in all
deals including the transaction with complainant. He do
promised in cross examination that the complainant will
produce statement of accounts in the course of proceedings.
But curiously statement of accounts is absent from evidence,
when there is genuine doubt about the quantum of liability in
view of the accounts made mentioned on Exts.D1 and D2
documents.”
8. I do not find any reason to interfere with the
Crl. L.P. No.1139/10 5
above findings. Though the petitioner would seek for one more
opportunity to produce the document, on the facts and
circumstances of this case. I do not think such an opportunity
need be granted. It is relevant to note that PW1 has admitted
in cross examination that the company is maintaining accounts
for the transaction with the accused, but such documents were
not produced.
9. It is also relevant to note that the trial court found
that the amount covered by the cheque is Rs.4,36,000/-. But, it
has come out from the evidence, particularly the details in
Exts.D1 and D2 pass books, that some amounts were already
paid and there was remittance of Rs.4,20,310/- from the
accused. Calculating the payment made and the payment due,
the trial court observed that the accused would not have
handed over a cheque covering an amount of Rs.4,36,000/-.
The relevant observations are in paragraph 14.
“Really the sum mentioned on Ext.P3 cheque is equivalent to
double the actual liability of accused towards complainant.
Needless to say that no man of common sense and prudence
will hand over cheque inviting exorbitant liability towards
another with whom his transaction was strained. Even if
Crl. L.P. No.1139/10 6
transaction is not strained, no man with reasonable sense
will invite unbearable debt in place of his actual liability.
Therefore, it is quite evident that there is something rotten
behind this contentions of complainant. Really speaking
their exist element of improbability rather to say
impossibility in the contention of complainant that accused
has issued cheque for huge sum, whereas liability is much
meagre.”
10. The trial court further proceeded on to find that
PW1 failed even in reciting the date of issuance of cheque,
Ext.P3. It is also found that there is no evidence to prove that a
demand was made to hand over a cheque towards liability. All
these facts generated doubts about execution of the cheque,
and the trial court entered finding that prosecution failed to
prove its case. The observations in paragraph 12 are relevant.
Those are extracted as follows :
“As admitted by both sides, the character of transaction
between complainant and accused are two chitty deals with
stake of Rs.3,00,000/- each. It is also admitted that after
remitting certain sum towards subscriptions accused has
obtained prize money in both chitties on condition that he
will pay future subscriptions promptly. According to
accused he had discharged entire subscriptions, but
complainant by ignoring to adjust the same against liability
has ignited this prosecution by materially altering a blank
Crl. L.P. No.1139/10 7
signed cheque given at the time of securing prize money.
Whereas PW1 has deposed that accused himself has came
forward and issued Ext.P3 instrument against existing
liability. But in what situation the defaulter/accused has
came to the office of complainant and issued Ext.P3 cheque
is not came out in evidence. Moreover during cross
examination PW1 do admit that there is no scrap of paper
available with complainant to see that accused was
demanded to hand over Ext.P3 cheque towards liability,
though he claims that a notice was issued for the same.
Above all PW1 has failed even in reciting the date of
issuance of Ext.P3 cheque by accused. So all these really
generates doubt about issuance of cheque as claimed by
complainant.”
11. On hearing both sides and on going through
impugned order, I do not find any reason to interfere with the
findings of the trial court, which are only acceptable. I do not
find any reason to grant leave.
Petition is dismissed.
K.HEMA, JUDGE.
tgs