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TMI Blog2020 (12) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant proceeded based on Ext.P7 agreement and re-possessed the vehicle from the accused and sold the vehicle, whether the amount of ₹ 87,600/- will be there as amount due can be decided only by a civil court or through the method mentioned in Ext.P7 hire purchase agreement. The trial court considered the entire aspect. After considering the oral and documentary evidence and based on Ext.P7 hire purchase agreement, the trial court came to such a conclusion. This is an appeal against acquittal - there are no reason to interfere with the finding of fact by the trial court - appeal dismissed. - CRL. A. No. 259 OF 2005 - - - Dated:- 30-9-2020 - THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FOR THE PETITIONER : BY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant. Exts.P1 to P7 are the exhibits. 4. After going through the oral and documentary evidence, the trial court found that the accused is not guilty under Section 138 N.I Act and he was acquitted under Section 255(1) Cr.P.C. Aggrieved by the above acquittal order, this appeal is filed. 5. Heard the counsel for the complainant and the counsel for the accused. I heard the learned Public Prosecutor also. 6. The counsel for the complainant submitted that, this is a case in which the complainant proved the offence under Section 138 N.I Act. The counsel submitted that there is a presumption in favour of the complainant under Section 139 of the Negotiable Instrument Act. The counsel submitted that, trial court has not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure shall be ascertained on adjudication. Unilateral fixation by the complainant is not fare. The complainant ought to have appointed arbitrators or approach the Civil court to ascertain the liability since it is not a liquidated one. The financier could not fix the liability according to his whims and fancy. Therefore, further liability of the accused subsequent the seizure is absolutely material concerning this cheque. 11. Cheque would be issued for discharging a liability and with the consideration. Here the consideration or liability is only for discharging the dues of ₹ 87,600/- towards the complainant which is the due accrued in instalment payment. After satisfying this claim, the cheque becomes cancelled or becomes disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of hire purchase agreement after issuing cheque. But revival of the right would prove that the issuance of a cheque is a conditional one. In such circumstance, the cheque shall be treated to be waste paper as reported by Hon'ble Supreme Court in 1954SC 429. That means, on exercising right of seizure provided in hire purchase agreement, the complainant treated it as an invalid document. Therefore, the complaint is estopped from proceeding on the basis of Ext.P1 cheque. 15. Sec. 5 of Negotiable Instruments Act states that cheque is a bill of exchange and it is an unconditional undertaking to pay some money. But seizure of the vehicle after dishonouring the cheque would prove that it was a conditional payment and not an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an end on accepting cheque. In case of dishonour, the liability of the drawer arise out of the cheque and not on the basis of original transaction. Exercising any right in original transaction absolutely affect the consideration since it implies that the cheque was handed over with a condition reserving the right of the complainant to seize the vehicle as provided under hire purchase agreement. That means the consideration is only a conditional one. When the complainant went back the original consideration the cheque become a waste paper as observed by Hon'ble Supreme Court in the Ruling reported in 1954 S.C.429. Therefore, the cheque is absolutely invalid on account of the failure of consideration. 10. I see no reason to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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