Joseph, S/O. Vareed v. Tomi Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID** **WEDNESDAY, THE 4TH DAY OF SEPTEMBER 2013/13TH BHADRA, 1935** **CRL.A.No. 1026 of 2008 ( ) ---------------------------** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 245/2008 OF HIGH COURT OF KERALA DATED 02-04-2008** **AGAINST THE ORDER/JUDGMENT IN CC 1453/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE -I, CHALAKUDY DATED 24-07-2007** **APPELLANT(S)/COMPLAINANT:** **--------------------------** **JOSEPH, S/O.VAREED, CHAKKALAKKAL HOUSE, ALATHUR VILLAGE, AARAMANAD DESOM, MANGER AND POWER OF ATTORNEY HOLDER OF VIKAS HIRE PURCHASE CO.LTD, CHALAKUDY).** **BY ADV. SRI.BECHU KURIAN THOMAS** **RESPONDENT(S)/ACCUSED:** **----------------------** **TOMI ANTONY, S/O.ANTONY, CHIRAKKAL HOUSE KARUKUTTY VILLAGE, PADAVAPURAM.** **BY ADV. PUBLIC PROSECUTOR SRI.VIJU THOMAS.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-092013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** ## **HARUN-UL-RASHID, J. --------------------------Crl.Appeal No. 1026 of 2008 -------------------------Dated this the 4[th] day of September 2013.** ## **JUDGMENT** The complainant in C.C.No. 1453/2004 on the file of the Judicial First Class Magistrate, Chalakudy is the appellant. The appeal is directed against the judgment dated 24.7.2007. The court below held that Ext.P3 cheque was without consideration and hence, no offence under Section 138 of the Negotiable Instruments Act is attracted. The court below found the accused not guilty and acquitted under Section 255(i) of Cr.P.C. Parties are hereinafter referred to as arrayed in the complaint. 2. The prosecution case is that, the accused purchased a motor bike as per the hire purchase agreement executed by him, in favour of the complainant Company, agreeing to remit the value of the motor bike in 24 installments. It is alleged that the accused defaulted the installment from the first month onwards. In the circumstance, the complainant Company repossessed and resold the vehicle. After the sale of the vehicle, it was found that, balance amount is due from the Crl.Appeal No. 1026/2008 2 accused, towards the price of the motor bike. The accused failed to repay the balance amount. Ext.P3 cheque was issued by the accused, after adjusting the sale proceeds, for the balance amount. According to the complainant, Ext.P3 cheque was issued, in discharge of defaulted amount of Rs. 18722.90 ps. The cheque was drawn on Catholic Syrian Bank Ernakulam dated 22.7.2004. The cheque was presented for collection through Cathoclic Syrian Bank, Chalakudy branch. It was dishonoured due to insufficiency of funds. The complainant issued notice on 23.8.2004. No reply was sent by the accused nor any payment was made. Hence, the complainant lodged the complaint. 3. The defence version is that he has closed the entire transaction with the complainant Company and the vehicle was repossessed and that the complainant filed present complaint by misusing the cheque issued by him. 4. Learned Judge found fault with the complainant, for not producing the hire purchase agreement before the court, took an adverse inference against the complainant. According to the learned Magistrate, if any amount is due, the only remedy of the complainant is to file a civil suit for obtaining money as per Crl.Appeal No. 1026/2008 3 clause-9 of hire purchase agreement. The case of the complainant is that Ext.P3 cheque dated 22.8.2004 was issued by the accused in discharge of his debt. The learned Magistrate found that, the complainant has not produced any document to show the balance amount, after the vehicle was repossessed. The learned Magistrate also observed that, there is no evidence as to what was the actual amount, which was due from the accused and for what amount the vehicle was resold and what is the balance amount. It is the duty of the complainant to prove his case. But he has not produced solid proof before the court. The court also relied on the decision in **Sudha** ## **Beevi v. State of Kerala** reported in **(2004 (2) KLT 746)** . 5. The complainant was examined as PW1. He testified before the court that, the hire purchase agreement was executed on 7.1.2003. He further testified that, the accused agreed to repay the amount in 24 installments and that from the first month onwards, the accused defaulted payment. In the circumstance, the vehicle was repossessed during May 2004 and resold on 17.6.2004. According to the complainant, after adjusting the sale amount, it was found that, some amount is due from the accused. Therefore, the accused issued Ext.P3 Crl.Appeal No. 1026/2008 4 cheque in discharge of the defaulted amount of Rs. 18722.90 ps. Ext.P3 cheque was dated 22.7.2004. The definite case of the complainant is that for the balance amount, the accused has issued Ext.P3 cheque. 6. The hire purchase transaction was not disputed by the accused. He failed to sent any reply to the legal notice issued to the complainant, calling upon him to pay the amount due under the cheque. The accused failed to produce any document in support of his version that the cheque was issued at the time of execution of the agreement as security for the loan transaction except his suggestion at the time of cross examination of PW1. He failed to show a probable case. In cross examination of PW1, another suggestion put is that he had paid the entire balance amount. The accused admitted the hire purchase agreement and that he defaulted payment and balance amount was due from him. These facts were not noticed by the court below. Instead, the learned Magistrate started blaming the complainant for not producing the hire purchase agreement and the account books. 7. While examining the scope of Section 138 of the Negotiable Instruments Act, the Apex Court in **I.C.D.S. Ltd.** Crl.Appeal No. 1026/2008 5 **v. Beemna Shabeer and another** reported in **(AIR 2002 S.C.3014)** clarifies the legislative intent. The apex Court held that the words “Where any cheque” suggest that for whatever reason if a cheque is drawn on an account maintained by the drawer with a banker in favour of another person for the discharge of any of debt or other liability, the words any debt or other liability if read with the first three words at the commencement of Section 138, have no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. The learned counsel for the appellant also cited the decision in **Ramesh v. M.M.Badrudheen & Another** reported in ( **2009(2) KLJ 556)** and contended that the complainant is entitled to the presumption under Section 139 of the Negotiable Instruments Act, and he is is not bound to produce the hire purchase agreement and accounts books regarding the loan transaction. The non-production of the said documents are not necessary since the presumption under Section 139 of the Negotiable Crl.Appeal No. 1026/2008 6 Instruments Act is arrived at. Therefore, he is not bound to produce the documents regarding the loan transaction. It is also contended that presumption is practically conceded by the accused. Setting up an alternative version of receiving only a lesser sum through another and discharge all the entire liability and that the cheque was issued as a security for the loan transaction. No proper case was made out by the accused by making two suggestion while PW1 was cross examined. In the decision relied on by the court below namely **Sudha Beevi v. State of Kerala** reported in ( **2004 (2) KLT 746)** wrongly written as 2002 KLT 746, the hire purchase agreement has been terminated. Learned Magistrate accepted the contention that the hirer of a motor vehicle cannot be prosecuted under Section 138 of the Act after the vehicle has been repossessed by the owner and the hire purchase agreement has been terminated. In that case, th offence recorded by that court is that the cheque in question was obtained by the respondent at the time of transaction as security for the loan liability. The principles of liability laid down in that case is not applicable in the present case. In this case, it is the definite case of PW1 that Ext.P1 cheque was issued by the accused after the repossession and Crl.Appeal No. 1026/2008 7 sale of the vehicle for discharging the balance amount due, after adjusting the amount obtained by the complainant on sale. Therefore, it is also pointed out that such a cheque was issued in discharge of the debt or other liability as defined under the Act and is a legally enforceable debt or liability. 8. Considering the contentions raised by the appellant and considering the fact that the respondent/accused did not appear before this Court, I direct the court below to reappreciate the case afresh on the basis of the materials on record and pass judgment in accordance with law untrammeled by the observation made above. In the result, the appeal is allowed. The case is remanded. The case shall be disposed of within a period of four months from the date of receipt of a copy of the judgment. **Sd/-** **HARUN-UL-RASHID, Judge.** True copy P.A. To Judge al/-