9911796707
TMI Blog2021 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... 95/- in 36 instalments at the rate of ₹ 1092/-. The documents produced by the parties indicate that the first respondent was never regular in repayment of the amount. However, at least in alternate months he has paid amounts. Till 17.07.2007, though intermittently, he paid an amount of ₹ 16,433/-, which includes the defaulted instalment interest. But the last remittance has not been reckoned by the appellant. Secondly, ₹ 12,195/- shown payable by the first respondent includes interest for the entire period of 36 months, during the period of the entire hire purchase agreement. There is substance in the finding of the trial court that it was not supported by consideration and therefore the appellant is not entitled to draw the presumptions under Sections 118 and 139 of the Act - it is obvious that sufficient reasons are not made out by the appellant to interfere with the judgment under attack - Appeal dismissed. - Crl. A. No. 597 of 2011 - - - Dated:- 11-6-2021 - K. Haripal, J. For the Appellant : Binu Kurian, Adv. For the Respondents : M.S. Breez, Sr. PP and G. Ranjith, Amicus Curiae JUDGMENT K. Haripal, J. 1. This is an appeal preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uriae. 5. According to the learned counsel for the appellant, the first respondent had availed a loan from the appellant for purchasing a motor bike. The total amount of the loan was ₹ 39,295/-, which was agreed to be repaid in 36 months at the rate of ₹ 1,092/- per month. But the first respondent had defaulted repayment; he had paid only ₹ 13,197/-. When there was default, the vehicle was re-possessed by the company and was sold in auction for ₹ 18,500/-. After adjusting the sale price of the motor bike, an amount of ₹ 10,800/- was due to the company for which the first respondent issued the cheque in question and that was how it was presented for encashment. According to the learned counsel, after failing to make any reply to the lawyer notice and adducing evidence for discharging the burden cast upon the first respondent, he cannot be heard to say that he has no liability to pay the amount. The counsel also relied on the decision reported in K.R. Rathikumar v. N.K. Santhamma and another [ILR 2006 (4) Ker. 268]. 6. On the other hand, the learned Amicus Curiae has submitted that Ext. P1 has no consideration. The appellant did not produce any doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 16 instalments and also the sale price of the motor bike, ₹ 18,500/-; as against the principal amount of ₹ 27,100/-, the appellant has already collected ₹ 31,697/- within a period of 18 months and therefore the appellant is not entitled to get the cheque amount as claimed by him and therefore, believing the version of the respondent, the case ended in acquittal. 11. It is trite that merely for the reason that the accused had admitted his signature on a negotiable instrument, its execution cannot be assumed. In order to draw the presumptions under Sections 118 and 139 of the Act, either the execution of the cheque should be admitted or it has to be proved that it was executed and issued in discharge of a legally enforceable liability. Here the first respondent does not admit the execution of the cheque. Then the question is, whether it is proved having executed, as claimed by the appellant. But there are reasons to doubt the genuineness of the contention of the appellant. 12. As stated by the learned Amicus Curiae, such a cheque might not have been issued after re-possession of the vehicle by its owner. The Ext. P8 shows that it was sold in public auction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws that an amount of ₹ 16,433/- was collected in eleven instalments from the first respondent by the appellant. It is noticeable that the last remittance, that is ₹ 2,500/- made on 17.07.2007, has not been reckoned in Ext. P9 statement of accounts. This has not been reckoned by the learned Magistrate also. In that case, the plea of the appellant will become more weak and that of the first respondent is more strong. 16. I have no doubt that Sudha Beevi, quoted supra, has no application since the appellant has no case that any signed blank cheque was obtained from the first respondent at the time of commencement of the transaction. It may be true that a signed blank cheque was obtained at that time. But that should not have been used by the first respondent unless a consensus was arrived between the parties with regard to the actual amount due. But it is certain that the actual remittances made by the first respondent have not been reckoned by the appellant. 17. A perusal of Ext. P9 shows that the actual consideration of the vehicle was ₹ 33,900/-. It is evident from Ext. P10 also. The margin money was ₹ 6,800/-. The loan amount, that is the amount actua ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
