IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 2525 of 2005 ------------------------- CC.829/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... PETITIONER/: ACCUSED ---------------------- USHA.M.P., MARIYIL HOUSE, PANCODE.P.O., ERNAKULAM. BY ADV. SRI.K.R.SUNIL RESPONDENTS: COMPLAINT ------------------------ 1. INTEGRATED FINANCE PVT. LTD., BUILDING NO.39/5682, RAVIPURAM JN., M.G.ROAD, ERNAKULAM. 2. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.S.RAJAN FOR R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO. 10109/2005 IN CRL.M.C. NO. 2525 OF 2005 DISMISSED. 11-12-2008 Sd/- M.C. HARI RANI, JUDGE TRUE COPY P.S.TO JUDGE M.C. HARI RANI, J. ====================== CRL.M.C.NO. 2525 of 2005 ======================= Dated this the 11th day of December 2008 ORDER The petitioner is the accused in C.C.No.829 of 2004 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam registered on the basis of the complaint filed by the first respondent complaining of commission by her of an offence punishable under Section 138 of the Negotiable Instruments Act. Annexure-A1 is the complaint so filed by the first respondent. The cheque is stated to be that issued in advance for payment of the monthly instalments due under the Hire Purchase Agreement availed of by the petitioner. The cheque which is complained of as having been dishonoured which furnishes cause of action for the first respondent is stated in Annexure-A1 complaint to be that dated 5-11-2003. It is admitted by counsel for the first respondent that the vehicle which was CRL.M.C.NO. 2525 OF 2005 -2- subject matter of the Hire Purchase Agreement was repossessed on 25-2-2003. After repossession of the vehicle, the Hire Purchase Agreement executed on 21-11-2001 stands cancelled and the remedy available to the first respondent is to sell the vehicle and to move for realisation of any further amount due from the petitioner by instituting a civil suit after set off all amounts that has been realised. On the basis of cheques entrusted with the first respondent with dates that fall subsequent to the seizure of the vehicle, the first respondent cannot continue to present cheques issued for discharge of the future instalments after repossession of the vehicle on 25-2-2003 and file complaints under Section 138 of the Negotiable Instruments Act on dishonour of such cheques. Such dishonour will not constitute any offence under Section 138 of the Negotiable Instruments Act as the consideration has failed. After repossession of the vehicle the first respondent is not entitled to file a complaint on the basis of cheque issued in advance in discharge of instalments due towards hire purchase amount for a subsequent period. CRL.M.C.NO. 2525 OF 2005 -3- In the result, allowing this Crl.M.C., I quash the proceedings in Annexure-A1 complaint as against the petitioner which is pending as C.C.No.829 of 2004 on the file of the Additional Chief Judicial Magistrate's Court, Ernakulam. M.C. HARI RANI JUDGE ks.