IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.L.P..No. 1199 of 2010()
1. M/S.SREE GOKULAM CHIT & FINANCE COMPANY
... Petitioner
Vs
1. GURUDAS, S/O.RAMANKUTTY,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.K.S.BABU
For Respondent :SRI.K.HARILAL
The Hon'ble MRS. Justice K.HEMA
Dated :18/01/2011
O R D E R
K.HEMA, J.
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Criminal Leave Petition No.1199 of 2010
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Dated 18th January, 2011.
O R D E R
This petition is filed for special leave to appeal.
2. Petitioner filed a complaint before the Magistrate
Court, alleging offence under Section 138 of the Negotiable
Instruments Act against first respondent on the allegation that
accused issued a cheque for Rs.72,913/- in favour of
complainant company, for discharging the debt towards
complainant by way of payment towards chitty. The cheque, on
presentation was dishonoured for want of sufficient funds. A
notice was issued and though accused received the notice, he
failed to make payment and hence the complaint.
3. The complainant examined PW1 and marked
Exts.P1 to P8 on his side. On the defence side, Exts.D1 to D3
were marked. On an analysis of the evidence on record, trial
court found that complainant failed to prove execution of
cheque and hence, presumption under Section 139 of the
Negotiable Instruments Act cannot be drawn in favour of
complainant.
4. The trial court found that the entires in Ext.P1
Crl.L.P. No.1199/2010 2
instrument were not written with the pen used for affixing
signature. So, there is every reason to believe that Ext.P1
cheque is an instrument handed over to complainant in blank
form while receiving chitty amount. It is also found that there is
nothing before the court show that accused has any dues of the
chitty.
5. On the other hand, trial court held that Ext.D1
proves repayment of Rs.1,33,650/-. It is evident from Exts.D2
and D3 that even after issuance of cheque, accused repaid
some of the defaulted instalments. While PW1 was examined,
he was totally ignorant about the amount due from accused.
According to accused, even after repayment of the amount,
complainant company filled up the entries in the cheque, which
was handed over as a blank one, while receiving Rs.1,50,000/-
and filed a false calse against him without any basis.
6. PW1 stated in the box that accused received the
amount during the 6th instalment. Though he admitted that
complainant company received payment vouchers and signed
Crl.L.P. No.1199/2010 3
chitty agreement from accused, no evidence was produced.
Though the appellant’s counsel was heard, he could not
substantiate that the above findings are wrong. I am not
satisfied from the submissions made that the findings entered
into by the trial court are unsustainable. In the above
circumstances, I am not inclined to grant leave.
This petition is dismissed.
K.HEMA, JUDGE.
tgs