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TMI Blog2021 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned judgment, the learned Magistrate dismissed the complaint and acquitted the accused under Section 255(1) of the Cr.P.C. 2. The complainant is a company registered under the Companies Act which is dealing in granting loan for purchase of consumer items. According to the complainant, on 02.01.2008 the first respondent had issued cheque No. 0129224 dated 02.01.2008 for Rs. 10,800/- drawn on Ottasekharamangalam branch of the State Bank of Travancore, in discharge of a legally enforceable liability. When presented for encashment through Kuravankonam branch of the Indian Overseas Bank on 14.02.2008, it returned dishonoured due to insufficiency of funds. Thereafter the complainant caused to issue lawyer notice which was returned unclaimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be repaid in 36 months at the rate of Rs. 1,092/- per month. But the first respondent had defaulted repayment; he had paid only Rs. 13,197/-. When there was default, the vehicle was re-possessed by the company and was sold in auction for Rs. 18,500/-. After adjusting the sale price of the motor bike, an amount of Rs. 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 repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n instalments ranging from 18.3.2006 to 18.02.2007, which shows that some amounts were repaid by the first respondent towards the transaction. Apparently, entries in the document were made by the staff members of the appellant. Similarly, Ext. D2 is yet another lawyer notice given to the first respondent and his surety on 28.10.2008, which was replied by the first respondent through Ext. D3 notice. In Ext. D2 the amount claimed is Rs. 12,660/- as against Rs. 10,800/- shown in Ext. P1 cheque. Whatever it may be, Exts. D1 to D4 are admitted by PW1. 9. The appellant contends that after re-possessing the vehicle and selling it in public auction, on adjusting the sale price, an amount of Rs. 10,800/- became due and in order to realise the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n public auction on 08.07.2007. In all probability, the vehicle must have been re-possessed by the appellant in August, 2007. Therefore, after re-possession, so long as the first respondent maintains that no amount is due to him and that he has already paid excess amount, the possibility of him reaching the office of the appellant and executing the Ext. P1 is very remote. Ext. D2 notice reinforces this contention. 13. Here the first respondent has a case that he had given a blank cheque at the time of execution of the hire purchase agreement, which has been misused by the appellant after selling the vehicle in public auction. 14. In fact, going by the recent trends in judicial pronouncements, even using such a blank cheque by incorporatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt also reckoned only that much amount. But I find that it is an incorrect calculation. On the face of it, Ext. D1 shows that an amount of Rs. 16,433/- was collected in eleven instalments from the first respondent by the appellant. It is noticeable that the last remittance, that is Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... few defaults, the appellant proceeded to re-possess the vehicle and then sold it out in auction. Though justifiable under the Ext. P7 agreement, the extreme step taken without showing any kind of indulgence, cannot be appreciated in right earnest. It is also quite patent that the entire amount remitted by the first respondent has not been reckoned by the appellant. For this reason and since there are reasons to indicate that the amount reckoned by the appellant is incorrect and that was done behind the back of the first respondent, I am not persuaded to take the view that the Ext. P1 is supported by consideration. There is substance in the finding of the trial court that it was not supported by consideration and therefore the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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