IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 CRL.A.No.1615 of 2004 (C) ------------------------------- CC.1157/2000 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA AGAINST THE ORDER IN CRL.L.P.565/2004 Dated 20/09/2004 .................... APPELLANT: PETITIONER/COMPLAINANT ---------------------------------- M/S.PREMIER AUTO LEASING, MUVATTUPUZHA, REP. BY JACOB VARGHESE, KALLINGAL HOUSE, KEERAMPRA. BY ADV. SRI.PEEYUS A.KOTTAM SRI.G.ANANTHANARAYANAN RESPONDENTS: STATE AND ACCUSED -------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.P.SHAJI, S/O.PAILY, MECHERY HOUSE, PUSHPAGIRI P.O., MELOOR,THRISSUR. BY ADV. SRI.JOHN NUMPELI (JUNIOR) SRI.P.V.PAULSON PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1615 of 2004 ------------------------------------------------ Dated this the 11th day of February, 2008 JUDGMENT This appeal with leave is filed by the complainant in C.C.1157/2000 on the file of the Judicial First Class Magistrate's Court, Muvattupuzha assailing the acquittal of the second respondent of offence under Section 138 of the N.I. Act under Section 255(1) of the Cr.P.C. 2. The appellant is a finance company engaged in financing for purchase of automobiles. It is the case of the appellant that the second respondent entered into a hire purchase agreement with the appellant/firm in respect of a vehicle bearing registration No.KL-4/A 4746; that he defaulted payment of amounts due under the hire purchase agreement; that on repeated demands, the second respondent paid the defaulted instalments vide Ext.P3 cheque dt.07/04/2000 for an amount of Rs.1,77,500/-; Crl. Appeal No.1615 of 2004 -2- that on presentation of cheque for encashment it was returned by the drawee bank dishonoured assigning the reason “funds insufficient” under Ext.P4 memorandum; that thereupon, Ext.P6 notice was issued to the second respondent intimating him of the dishonour of the cheque and demanding payment of the amounts covered by the cheque; and that was returned unclaimed and the second respondent has not cared to make payments of the amount covered by the cheque either within the statutory period or ever thereafter and thereby, he has committed an offence punishable under Section 138 of the N.I. Act. 3. On appearance of the second respondent in the court below, he was served with copies of all relevant records in the case and he was questioned by the Magistrate reading over the particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and consequently, a trial of the case was Crl. Appeal No.1615 of 2004 -3- conducted by the Magistrate. On the side of the appellant, PW1 was examined and Exts.P1 to P6 were got marked. 4. On the appellant/complainant closing his evidence the second respondent was questioned under Section 313 Cr.P.C. Thereupon, he generally denied all incriminating circumstances appearing in evidence against him and maintained that he is innocent. According to him, no amount is due to the appellant. On the defence side DWs.1 to 3 were examined and Exts.D1 to D3(a) were got marked. The court below considered the case in the light of the evidence adduced as aforesaid; found that Ext.P1 cheque is not one issued in discharge of debt or other liability and consequently, acquitted the second respondent under Section 255(1) Cr.P.C of offence under Section 138 of the N.I. Act. Hence, this appeal. 5. It is contended before me by the learned counsel for the appellant that the Crl. Appeal No.1615 of 2004 -4- presumption under Section 139 of the N.I. Act should have been considered as supporting the claim of the appellant that Ext.P3 cheque was issued in discharge of debt due to the appellant and that all other statutory formalities having been complied with and the reason for dishonour being “insufficiency of funds” in the account of the second respondent to honour Ext.P3 cheque, the second respondent should have been found guilty of offence punishable under Section 138 of the N.I. Act; convicted thereunder and sentenced for the said offence. 6. The second respondent has no quarrel in that all statutory formalities which are prerequisites for the maintainability of a complaint under Section 138 of the N.I. Act stands complied with in the instant case; and that the dishonour of the cheque was for reason of “insufficiency of funds” in his account. Consequently, therefore, what remains Crl. Appeal No.1615 of 2004 -5- for consideration is as to whether Ext.P3 cheque is one issued in discharge of debt due to the appellant as is their case. 7. It is the case of the appellant that Ext.P3 cheque is issued in discharge of an amount of Rs.1,77,500/- due from the second respondent to the appellant. Absolutely no evidence is adduced on the side of the appellant to show that an amount is due as alleged under the hire purchase agreement so as to be discharged by issuing Ext.P3 cheque. All the same, on the defence side second respondent has produced copy of plaint in O.S.112/01 wherein himself and his sureties in the hire purchase agreement are defendants 1 to 3. The said suit is for realisation of amounts due under the hire purchase agreement availed by the second respondent for purchase of vehicle bearing registration No.KL 4/A 4746 and the amount claimed therein is Rs.1,77,500/-. The said suit has been compromised and Crl. Appeal No.1615 of 2004 -6- accordingly, the suit was decreed in terms of the compromise filed vide I.A.213/03. The terms of compromise in I.A.213/03 show that the defendants therein of whom the first defendant is the second respondent agreed that an amount of Rs.1,50,000/- is due from him to the appellant; and that, that would be discharged on or before 30/05/03 and that when it is so settled C.C.1170/99 filed before the Judicial First Class Magistrate's Court, Chalakkudy as also cheque case filed before the Judicial First Class Magistrate's Court-I, Moovattupuzha will be withdrawn; and that in case of failure an amount of Rs.1,77,500/- will have to be paid under the decree with 12% interest charged on the property covered by deed No.2589/94 of Sub Registrar Office, Annamanada. If at all on payment of Rs.1,50,000/- on or before 30/05/03 as agreed to in the compromise petition the entire transaction would stand settled and the cheque Crl. Appeal No.1615 of 2004 -7- case filed before the Judicial First Class Magistrate's Court-I, Muvattupuzha and C.C. 1170/99 pending on the file of the Judicial First Class Magistrate's Court, Chalakkudy are to be withdrawn, then obviously, all claims so advanced on the basis of two dishonoured cheques and in Ext.D1 suit are for the one and the same claim. When Ext.D3 suit is decreed as per compromise, it cannot be said that Ext.P3 cheque is one issued in discharge of debt or other liability especially when the date of Ext.P3 cheque is 07/04/2000 and the date of decree in O.S.112/01 evidenced by Ext.D2 is 30/01/03. Consequently, therefore, as rightly found by the court below, it has to be held that the appellant has miserably failed to establish that Ext.P3 cheque is issued in discharge of any debt or other liability and that the chances are that while advancing amounts under the hire purchase agreement blank cheques were being obtained and were Crl. Appeal No.1615 of 2004 -8- being utilised for filing complaints of which one is the present complaint filed before the court below, against which this appeal has arisen. Hence, I find that the acquittal of the second respondent by the court below has only to be confirmed in the circumstances. 8. In the result, confirming the acquittal of the second respondent by the court below, I dismiss this Criminal Appeal. K.P.BALACHANDRAN, JUDGE kns/-