Sunil Kumar v. Manappuram General Finance and Leasing Ltd. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 7TH DAY OF JANUARY 2014/17TH POUSHA, 1935** ## **Crl.MC.No. 267 of 2012** **-------------------------CC NO.2089/09 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I,THRISSUR .....** **PETITIONER(S):ACCUSED:** **----------------------------------------** **SUNIL KUMAR,** **S/O.CHANDRASEKHARAN, AGED 36, MANJUBHAVAN, SIVAJIPURAM, MANCHERI P.O., THIRUVANANTHAPURAM.** **BY ADVS.SRI.VINOD J.DEV** **SRI.PRAMOD J.DEV** **RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------** **1. THE MANAPPURAM GENERAL FINANCE AND LEASING LTD., MANAPPURAM HOUSE, VALAPPAD, THRISSUR-680 001, REPRESENTED BY ITS MANAGER.** **2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.B.S.SURESH KUMAR R2 BY PUBLIC PROSECUTOR SRI.GITHESH.R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.267/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE AI TRUE COPY OF LETTER DATED 28/4/2007 ISSUED BY THE RESPONDENT.** **ANNEXURE AII TRUE COPY OF THE RELEVANT PAGES OF PAYMENT BOOK. ANNEXURE AIII TRUE COPY OF LETTER DATED NIL RECEIVED BY THE PETITIONER. ANNEXURE AIV TRUE COPY OF LAWYER NOTICE DATED 18/3/2009. ANNEXURE AV TRUE COPY OF REPLY NOTICE DATED 03/04/2009. ANNEXURE AVI TRUE COPY OF COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT AS C.C.2089/2009 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THRISSUR.** ## **RESPONDENTS' ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** K.RAMAKRISHNAN, J. ----------------------------------------------------------------Crl. M.C. No.267 of 2012 -----------------------------------------------------------------Dated this the 7[th] day of January, 2014 ## O R D E R This is an application filed by the sole accused in C.C.No.2089/2009, on the file of the Judicial First Class Magistrate Court-I, Thrissur, to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called the 'Code'). 2. The case of the petitioner in the petition was that, on 13.03.2007, he entered into a hire purchase agreement with the first respondent and obtained a loan of ₹ 1,09,000/-, as per Annexure-1 sanction letter. As per the agreement, the amount will have to be paid in equal monthly instalments at the rate of 5,071/- upto 13.09.2009₹ and 4,871/- thereafter. At the time of availing the loan,₹ five blank cheque leaves and tax receipt of the property owned by the petitioner were given as security for the 2 Crl. M.C. No.267 of 2012 transaction. It is alleged in the petition that, he had also signed several blank papers and handed over the same as insisted by the first respondent. The entire transaction has been taken place from the branch office of the first respondent at Thiruvananthapuram. The loan was availed for purchasing an auto-rickshaw bearing No.KL.20-5695. According to the petitioner, he made payment of instalments upto 05.04.2008 and thereafter, due to some financial difficulties, he could not make payment and this will be seen in Annexure-AII pass book maintained by him. Though he made request for granting time for settling the amount, the first respondent, without heeding for the request had forcefully re-possessed the vehicle in June, 2008 and told him that, the entire debts cancelled and the blank cheques and other documents given as security will return to him in a short period. But thereafter, without giving an opportunity to the petitioner for re-payment of the amount, they sold the vehicle for a paltry amount and 3 Crl. M.C. No.267 of 2012 thereafter issued Annexue-AIII notice, intimating the balance amount due. Thereafter, Annexure-V notice was issued, stating that a cheque for ₹ 1,09,492/dated 10.01.2009 issued in favour of the first respondent, on presentation, was dishonoured for insufficiency of funds and demanding payment of the amount covered by the cheque, for which the petitioner issued Annexure-V reply denying the allegations. Thereafter, the first respondent field Annexure-VI complaint before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act, which was taken on file as C.C.No.2089/2009 and pending before the Judicial First Class Magistrate-I, Thrissur. According to the petitioner, after re-possession of the vehicle, the hire purchase agreement between the petitioner and the first respondent had come to an end and on the basis of the blank cheque given earlier as security, no proceedings under Section 138 of the Negotiable Instruments Act will be maintainable. So 4 Crl. M.C. No.267 of 2012 he wanted to quash the proceedings and filed this application for that purpose. 3. Heard the learned counsel for the petitioner and counsel for the first respondent and learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that, the cheque was given at the time, when the hire purchase agreement was executed as a blank signed cheque as security and after re-possession of the vehicle, the proceedings under Section 138 cannot be initiated on the basis of the cheque so given earlier. He had relied on the decision reported in **Sudha Beevi v. State of Kerala (2004(2) KLT 746)** , in support of his contentions. 5. On the other hand, the learned counsel for the first respondent submitted that, they have not received any blank signed cheque as security as alleged. But after the re-possession and sale of the vehicle, the cheque in dispute was given by the accused in discharge of the 5 Crl. M.C. No.267 of 2012 balance amount due. So the dictum laid down in the decision relied on by the counsel for the petitioner is not applicable to the facts of this case. 6. I have considered the rival contentions of both parties in detail. 7. In the decision relied on by the counsel for the petitioner in Sudha Beevi's case (supra), the case was that, the post dated cheques given for repayment of the instalments was used for filing a complaint under Section 138 of the Negotiable Instruments Act, after re-possession of the vehicle, purchased on the basis of the hire purchase agreement, entered into between the accused and the financier in that case. In that circumstances, this court has held that, once the hire purchase agreement has come to an end with the re-possession of the vehicle, the cheque given earlier cannot be used for prosecuting the accused under Section 138 of the Negotiable Instruments Act. That was not the case here. According to the counsel for the first 6 Crl. M.C. No.267 of 2012 respondent, the cheque was given later in discharge of the balance amount due. The question whether the cheque was given as a blank signed cheque, as a security at the time when the hire purchase agreement was executed as contended by the petitioner or it was given later, after the sale of the vehicle by the financier, in discharge of the balance amount due as contended by the first respondent etc. are all matters to be considered and decided on the basis of evidence to be adduced by both the parties at the time of trial. So, the dictum laid down in the above decision is not applicable to the facts of this case. Once the matter has to be decided on the basis of the evidence, it is settled law that this court cannot invoke the power under Section 482 of the Code of Criminal Procedure Code, to quash the proceedings. So under the above circumstances, I feel that it is not a fit case to invoke Section 482 of the Code of Criminal Procedure to quash the proceedings at this stage. But the petitioner is at liberty to raise all his contentions Crl. M.C. No.267 of 2012 7 raised by him in this petition before the trial court. With the above observation and liberty, this petition is dismissed. Sd/- K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss