9911796707
TMI Blog2023 (11) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... fice of the 1st respondent to issue Ext.P3 cheque. No evidence is there to prove that Ext.P3 cheque was issued towards the balance amount due, after adjusting the sale price. The conviction and sentence imposed on the revision petitioner under Section 138 of the Negotiable Instruments Act is set aside - Revision petition is allowed. - THE HONOURABLE MRS. JUSTICE SOPHY THOMAS For the Petitioner : B. Mohanlal, Adv. For the Respondents : Renjit George, Senior Public Prosecutor ORDER This revision is at the instance of the accused in CC No. 117 of 2002 on the file of the Judicial First Class Magistrate-IV (Mobile), Thiruvananthapuram, assailing the judgment in Crl. Appeal No. 549 of 2003 on the file of IInd Additional Sessions Judge, Thiruvananthapuram, upholding his conviction under Section 138 of the Negotiable Instruments Act, though modified and reduced the sentence to certain extent. 2. CC No. 117 of 2002 was based on a complaint filed by M/s. Shrachi Securities Ltd.-the 1st respondent herein, against the revision petitioner herein alleging an offence punishable under Section 138 of the Negotiable Instruments Act. The complainant/1st respondent was a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence, the revision petitioner preferred Crl. Appeal No. 549 of 2003. The appellate court found that the vehicle covered by the hire purchase agreement was seized by the complainant/1st respondent and it was sold. It was further found that Rs. 57,000/- was already paid by the revision petitioner towards the loan amount, in ten monthly installments. The appellate court was of the view that after adjusting the monthly installments already paid, and also the sale price of the vehicle received by the the complainant/1st respondent, the revision petitioner was not liable for compensation to the tune of Rs. 1,24,500/- as ordered by the trial court, and so the compensation amount was reduced to Rs. 75,000/-, and the substantive sentence of three months imposed by the trial court was reduced to imprisonment till rising of the court. 6. The revision petitioner is assailing the judgment of the appellate court mainly on two grounds. The first ground is that Ext.P3 cheque was not issued towards discharge of any legally enforceable debt and it was given only as a security at the time of availing the hire purchase loan, in the year 1997. The second ground is that the vehicle covered by the hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd accordingly the revision petitioner reached the office of the 1st respondent and issued Ext.P3 cheque for discharging that debt. But the notice sent to the revision petitioner in the year 2002 was not produced by him to substantiate his contention. The revision petitioner when examined before court as DW1, submitted that he received Ext.D1 notice from the 1st respondent after seizing the vehicle and that notice is dated 07.08.1998. Ext.D1 notice says that the vehicle was seized on 30.06.1998 and if he is not interested in releasing it, he has to forward its RC Book. When he reached their office, in the year 1998, in pursuance to Ext.D1 notice, the respondent asked for Rs. 5,000/- to close that matter, but it was not paid by him. He never went to the office of the 1st respondent in the year 2002, and never issued Ext.P3 cheque dated 06.02.2002, after typewriting the contents. There is nothing to show issuance of any notice in the year 2002, or to show that the revision petitioner went to the office of the 1st respondent in the year 2002. The fact that seizure and sale of the vehicle covered by the hire purchase agreement was suppressed in the complaint, and the fact that the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by any consideration, since the agreement had stood determined ipso facto and also since the owner had admittedly re-possessed the vehicle even before the cheque was presented for encashment. Thus, there is no doubt that by effecting seizure of the vehicle, the owner had exercised the option available to him under the agreement. The post-dated cheques in the hands of the owner had become instruments for which consideration had failed. In that view of the matter, no offence punishable under S.138 of the Act would be attracted, since it is trite that in order to attract the above penal provision, the debt or other liability must be a legally enforceable debt or liability . If the negotiable instrument is not supported by consideration, there is no question of the provisions of S.138 of the Act being attracted. 21. There is yet another reason to take the above view in this case. It is admitted by the complainant that the seized vehicle was sold later and the sale price was adjusted towards the liability payable by the hirer. It is on record that respondent No. 2/complainant has already filed a suit before the High Court of Madras (Annexure A9) for recovery of a total ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
