IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 CRL.A.No. 1855 of 2004() ------------------------ AGAINST THE JUDGEMENT IN ST.470/2002 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT IN ST.NO.470/2002 ------------------------------------------- MULAMOOTTIL CONSUMER CREDITS LTD., REPRESENTED BY ITS AUTHORISED SIGNATORY AND ASSISTANT MANAGER (HEAD OFFICE OF THE COMPANY) S.RAVEENDRAN NAIR, AGED 63 YEARS, RESIDING AT 'ASWATHI SRREEKRISHNA NAGAR, CHAVADIMUKKU, SREEKARIYAM, THIRUVANANTHAPURAM -17. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): ACCUSED IN ST.NO.470/2002 AND STATE -------------------------------------------------- 1. M.THYAGARAJAN S/O. MANIYAN ASARI, KARTHIKA ERATTAKALINGU, KOONTHALOOR, CHIRAYINKIL P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.M.R.RAJESH FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1855 OF 2004 ----------------------------------- Dated 1st June, 2011 J U D G M E N T This petition is filed against an order of acquittal. 2. Appellant is the complainant. He filed a complaint against first respondent alleging offence under section 138 of Negotiable Instruments Act on the allegation that accused issued a cheque for Rs.13,000/- to the complainant, which on presentation to the bank, was returned unpaid due to insufficiency of fund and despite lawyer notice issued demanding payment, accused did not pay the amount. 3. Prosecution examined PW1 and marked Ext.P1 to P6. Accused contended that there was a hire purchase agreement between the parties and he entrusted four blank signed cheques and a signed stamp paper while availing of loan from the complainant. He remitted eight instalments and thereafter he met with an accident and subsequently the vehicle was repossessed by complainant and a false complaint was given misusing the cheque. He examined himself as DW1 and marked Ext.D1 to D4. Crl.A. No.1855/04 2 4. Trial court after anaysing the rival contentions found that the vehicle hired by accused under hire purchase agreement from the company was seized on 23.1.2002 as evidenced by Ext.D1 letter (this fact is admitted at the time of argument), but the cheque is dated 16.8.2002. In the light of the decision reported in Sudha Beevi Vs. State of Kerala 2004(2) KLT 746, trial court also found that complainant filed under section 138 of Negotiable Instruments Act is not maintainable. Trial court took note of the dictum laid down in the decision cited above that “hirer of a motor vehicle cannot be prosecuted under section 138 of Negotiable instruments Act after the vehicle has been repossessed by the owner and the hire purchase agreement has been terminated.” In this case also, accused is the hirer and complainant is the financier. The cheque is stated to be executed after repossession of the vehicle. 4. Learned counsel for appellant tried to distinguish the decision cited above and argued that the said decision is not applicable to the facts of this case. In the reported decision, vehicle was seized and sold in auction and thereafter, the post dated cheques (which were in the possession of financier prior to sale) were presented. In the instant case, accused did not issue Crl.A. No.1855/04 3 any post dated cheque. The vehicle was sold and balance amount remains to be paid and the cheque was given only towards such liability, it is submitted. 5. On going through the impugned order I find that trial court found that statement of account of complainant company is not produced. Further, in the deposition of DW1, it was stated that seized scooter would have fetch sum of Rs.35,000/- but this fact is not challenged or disputed by complainant and there is absolutely no evidence on record to show that at what price scooter was sold. Therefore, the contentions of the complainant that it was for the balance amount that cheque was issued was not accepted by trial court. Trial court also took into consideration, Ext.D1 letter. The contentions raised were all looked into by trial court. The findings in paragraph 8 to 10 are relate to the contentions raised in this appeal. I do not find that those findings suffer from any infirmity. Hence I am not inclined to admit this appeal. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True Copy // P.A. to Judge.