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TMI Blog2021 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is not accepted that company deals orally. It is evident that the cheque dated 19.12.2013 is obtained by the complainant at the time of execution of the agreement Ex. P6 itself and it is a post dated cheque - The evidence on record disclose Ex. P1 when compared with Ex. P6, establish that it is the post dated cheque issued at the time of execution of Ex. P1. Even that apart, account statement itself discloses that no proper account is maintained and PW. 1 does not know anything about this. There is no evidence as to when exactly the vehicle was seized and admittedly no notice was issued to the complainant and after seizure, the hypothecation agreement came to an end and again the complainant wanted to proceed against the accused. However, when the vehicle was sold is also not forthcoming. Hence, it is evident that the documents produced by the complainant are not at all maintained in proper way and they have failed to establish legally enforceable debt to the tune of ₹ 3,60,000/- as referred in Ex. P1. Merely admission of signature of Ex. P1 does not assist the prosecution in proving the guilt of the accused. Though the presumption is in favour of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined as PW. 1 and complainant has also placed reliance on Ex. P1 to Ex. P7. Then the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution and the case of accused is of total denial. Then after hearing the arguments, the learned magistrate has found that the complainant has failed to prove that the cheque Ex. P1 was issued towards legally enforceable debt and observed that blank cheque was taken at the time of execution of the agreement itself and hence, it cannot be enforced and thereby acquitted the accused. Being aggrieved by this judgment of acquittal the complainant has filed this appeal. 4. Heard the learned counsel for the appellant. Respondent is unrepresented and as such looking to this aspect, Sri. Sabel Ahmed, learned counsel is appointed as Amicus Curiae to assist the Court. Heard the arguments advanced by the learned amicus curiae also. I have also perused the records in detail. 5. The learned counsel for the appellant would contend that the judgment and order of the Court below is erroneous, perverse and capricious and calls for inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal. 7. Having heard the arguments and perusing the records, now the following point would arise for my consideration: Whether the judgment acquittal passed by the trial Court is sustainable in the eye of law? 8. It is to be noted here that according to the complainant the accused has availed loan for purchase of Mahindra vehicle bearing No. KA.26/TA-4266 by executing a loan cum hypothecation agreement. Very interestingly, complainant all along simply asserted that total agreement value is ₹ 4,56,280/- but they did not assert as to what is the amount of the loan advanced for purchase. This pleading is completely silent. Ex. P7 is the statement of account produced. It discloses that loan amount is ₹ 3,50,000/- but, it is asserted that total agreement value is ₹ 4,56,280/- and these anomalies are not at all explained by the complainant. PW. 1 who claims to be the authorized officer pleads ignorance about all these aspects. Even Ex. P7 is not a document which is required to be admitted as it is a notarized copy and the document attested by authorized officer is also not produced. 9. On perusal of Ex. P7, it is evident that certain installments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng seizure of the vehicle though PW. 1 claims that he has intimated the sale to accused No. 1 orally. The said contention cannot be accepted as the company is dealing with the matter and it is not accepted that company deals orally. 13. Further on perusal of Ex. P6 i.e., loan cum hypothecation agreement paragraph No. 1.7 deals with issuing post dated cheques in respect of the installments due. Hence, the Clause in Ex. P6 itself disclose that the complainant has obtained post dated cheques. Hence, it is evident that the cheque dated 19.12.2013 is obtained by the complainant at the time of execution of the agreement Ex. P6 itself and it is a post dated cheque. Hence, in view of the decision of the Hon'ble Apex Court reported in 2014 12 SCC 539 in the case of M/s. Indus Airway Pvt. Ltd. and others vs. M/s. Magnum Aviation Pvt. Ltd. and another, wherein the Hon'ble Apex Court has clearly observed that the post dated cheque issued cannot be considered towards discharge of legally enforceable debt or otherwise liability and consequently the offence for dishonour of cheque under Section 138 of NI Act is not attracted. The evidence on record disclose Ex. P1 when compared with Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2015 and Crl.A. No. 100186/2015 along with connected cases and argued that in all these matters in similar circumstances the appeal came to be allowed. But the facts and circumstances of said cases are entirely different and in the instant case the statement of account, seizure of the vehicle, non averment of exact loan are issues and hence considering the different facts and circumstances, the principles enunciated in the above referred decision cannot be made applicable and they cannot act as a precedent in this case. Hence, looking to these facts and circumstances the judgment of the trial Court cannot be said to be erroneous or illegal so as to call for any interference by this Court. The learned magistrate has considered all these aspects in proper perspective and arrived at a just decision. Hence, the judgment of the trial Court does not call for any interference and it is sustainable under law. The Court places its appreciation on the record of the assistance rendered by the amicus curiae. Under such circumstances, I answer the point under consideration in the affirmative. Accordingly, I proceed to pass the following: ORDER The appeal is dismissed. The fees of amic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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