M/S.Mulamootil Consumer Credits ... vs Mr.Lawarence And Another
2021 Latest Caselaw 12867 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR. JUSTICE K.HARIPAL
         FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943
                          CRL.A NO. 597 OF 2011
AGAINST THE JUDGMENT IN ST 3042/2008 OF JUDICIAL MAGISTRATE OF FIRST
         CLASS IV (MOBILE), THIRUVANANTHAPURAM DATED 17.04.2010
APPELLANT/COMPLAINANT:

             M/S.MULAMOOTIL CONSUMER CREDITS LTD.
             HOMESTEAD MUSEUM BAINS COMPOUND, NANDANCODE,, TRIVANDRUM-
             695002, REPRESENTED BY ITS AUTHORISED SIGNATORY, POWER OF
             ATTORNEY HOLDER, SMT.BINU KURIAN, AGED 45, W/O.KURIAN
             JOHN, 'BIJI VILLA', THAIKKATTUKARA P.O., ALUVA-683106.

             BY ADV SRI.BIJU HARIHARAN


RESPONDENTS/ACCUSED & STATE:

     1       MR.LOWARENCE,
             S/O. VARGHESE, EDAVAL,
             MARATHARAVILAKOM, OTTASHEKARAMANGALAM P.O.,
             NEYYATTINKARA, THIRUVANANTHAPURAM, PIN-655125.

     2       STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, KOCHI-31.




OTHER PRESENT:

             SR.PP - SRI. M.S.BREEZ, AMICUS CURIAE - SRI. G. RANJITH


THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 31.03.2021, THE
COURT ON 11.06.2021 DELIVERED THE FOLLOWING:
 Crl.A.597/2011                      2




                            JUDGMENT

This is an appeal preferred under Section 378(4) of the Code of

Criminal Procedure, Cr.P.C. for brief, challenging the legality and

correctness of the judgment of the Judicial First Class Magistrate-IV

(Mobile Court), Thiruvananthapuram. That judgment was rendered in a

complaint preferred alleging offence punishable under Section 138 of the

Negotiable Instruments Act. By the impugned judgment, the learned

Magistrate dismissed the complaint and acquitted the accused under

Section 255(1) of the Cr.P.C.

2. The complainant is a company registered under the Companies

Act which is dealing in granting loan for purchase of consumer items.

According to the complainant, on 02.01.2008 the first respondent had

issued cheque No.0129224 dated 02.01.2008 for Rs.10,800/- drawn on

Ottasekharamangalam branch of the State Bank of Travancore, in

discharge of a legally enforceable liability. When presented for

encashment through Kuravankonam branch of the Indian Overseas Bank

on 14.02.2008, it returned dishonoured due to insufficiency of funds.

Thereafter the complainant caused to issue lawyer notice which was

returned unclaimed. It means the first respondent was not prepared to

discharge the liability and that made the complainant to move the

complaint before the trial court on 29.4.2008.

3. Pursuant to the summons, the 1st respondent appeared and

pleaded not guilty. His personal appearance was dispensed with by the

court. Thereafter the power of attorney holder was examined as PW1 and

Exts.P1 to P10 were marked. Examination of the accused under Section

313 Cr.P.C.was dispensed with under the proviso since the personal

appearance of the 1st respondent stood dispensed with. There was no

evidence in defence. However Exts.D1 to D4 were marked on the side of

the defence. After hearing counsel on both sides, by the impugned

judgment, the learned Magistrate found that the appellant could not prove

that the Ext.P1 was issued in discharge of a legally enforceable liability

and on that premise, the case ended in acquittal. After obtaining leave

under Section 378(4) of the Cr.P.C., the appellant has preferred this appeal.

4. Though notice was duly served on the 1st respondent, he did

not take care to enter appearance before this Court. Therefore,

Adv.Sri.G.Renjith, on being volunteered, was nominated as Amicus

Curiae. I heard the learned counsel for the appellant as also the learned

Amicus Curiae.

5. According to the learned counsel for the appellant, the first

respondent had availed a loan from the appellant for purchasing a motor

bike. The total amount of the loan was Rs.39,295/-, which was agreed to

be repaid in 36 months at the rate of Rs.1,092/- per month. But the first

respondent had defaulted repayment; he had paid only Rs.13,197/-. When

there was default, the vehicle was re-possessed by the company and was

sold in auction for Rs.18,500/-. After adjusting the sale price of the motor

bike, an amount of Rs.10,800/- was due to the company for which the first

respondent issued the cheque in question and that was how it was

presented for encashment. According to the learned counsel, after failing

to make any reply to the lawyer notice and adducing evidence for

discharging the burden cast upon the first respondent, he cannot be heard

to say that he has no liability to pay the amount. The counsel also relied

on the decision reported in K.R. Rathikumar v. N.K. Santhamma and

another [ILR 2006 (4) Ker. 268].

6. On the other hand, the learned Amicus Curiae has submitted

that Ext.P1 has no consideration. The appellant did not produce any

document to prove the exact amount, whatsoever, due to the appellant

from the respondent. According to him, in fact, the respondent had repaid

excess amount and amounts are due to the first respondent from the

appellant. The principal amount of the transaction is not discernible from

the Ext.P9 statement of accounts. Rs.39,295/- includes interest due to the

appellant for a period of 36 months. But the contract was prematurely

rescinded and the hire purchase agreement stood terminated. According to

the learned counsel, the vehicle was re-possessed by the appellant before

September 2007 and therefore, after re-possession, it cannot be thought

that Ext.P1 cheque was issued by the first respondent. It is improbable

also. He also relied on the decision reported in Sudha Beevi v. State of

Kerala [2004 (2) KLT 746].

7. The learned counsel for the appellant, in reply, submitted that

the Ext.P1 is not a post-dated cheque and therefore the decision in Sudha

Beevi, cited supra, has no application to the facts of the case.

8. Before proceeding to the rival contentions, it is advantageous

to point out the documents relied on by the party respondent. Ext.D1 is

shown as the pass book. In fact, it is a statement in printed form, proving

the payment of amount by the respondent in instalments ranging from

18.3.2006 to 18.02.2007, which shows that some amounts were repaid by

the first respondent towards the transaction. Apparently, entries in the

document were made by the staff members of the appellant. Similarly,

Ext.D2 is yet another lawyer notice given to the first respondent and his

surety on 28.10.2008, which was replied by the first respondent through

Ext.D3 notice. In Ext.D2 the amount claimed is Rs.12,660/- as against

Rs.10,800/- shown in Ext.P1 cheque. Whatever it may be, Exts. D1 to D4

are admitted by PW1.

9. The appellant contends that after re-possessing the vehicle and

selling it in public auction, on adjusting the sale price, an amount of

Rs.10,800/- became due and in order to realise the same, on notice, the

first respondent had appeared and issued the Ext.P1 cheque. But that has

been denied by the first respondent.

10. The learned Magistrate disbelieved the version of the

appellant. According to the Magistrate, the appellant had already collected

Rs.31,697/-, which includes Rs.13,197/- paid by the first respondent in 16

instalments and also the sale price of the motor bike, Rs.18,500/-; as

against the principal amount of Rs.27,100/-, the appellant has already

collected Rs.31,697/- within a period of 18 months and therefore the

appellant is not entitled to get the cheque amount as claimed by him and

therefore, believing the version of the respondent, the case ended in

acquittal.

11. It is trite that merely for the reason that the accused had

admitted his signature on a negotiable instrument, its execution cannot be

assumed. In order to draw the presumptions under Sections 118 and 139

of the Act, either the execution of the cheque should be admitted or it has

to be proved that it was executed and issued in discharge of a legally

enforceable liability. Here the first respondent does not admit the

execution of the cheque. Then the question is, whether it is proved having

executed, as claimed by the appellant. But there are reasons to doubt the

genuineness of the contention of the appellant.

12. As stated by the learned Amicus Curiae, such a cheque might

not have been issued after re-possession of the vehicle by its owner. The

Ext.P8 shows that it was sold in public auction on 08.07.2007. In all

probability, the vehicle must have been re-possessed by the appellant in

August, 2007. Therefore, after re-possession, so long as the first

respondent maintains that no amount is due to him and that he has already

paid excess amount, the possibility of him reaching the office of the

appellant and executing the Ext.P1 is very remote. Ext.D2 notice

reinforces this contention.

13. Here the first respondent has a case that he had given a blank

cheque at the time of execution of the hire purchase agreement, which has

been misused by the appellant after selling the vehicle in public auction.

14. In fact, going by the recent trends in judicial pronouncements,

even using such a blank cheque by incorporating the name of the payee,

amount, date etc. cannot be taken as a reason for acquitting the drawer. At

the same time, it is very important that the complainant has a duty to say

that the transaction is genuine. Initial burden of proving the case is on him.

For two reasons the genuineness of the case put forward by the appellant

has to be doubted. As stated earlier, it is improbable that the first

respondent, who was the hirer, had gone to the place of the appellant and

executed and issued the Ext.P1 cheque especially after the re-possession of

the vehicle and selling it in public auction.

15. Secondly and more importantly, the genuineness of the Ext.P9

statement of accounts has to be doubted. I have gone through the

document vis-a-vis the entries in Ext.D1 document acknowledging receipt

of various instalments made by the first respondent. This document shows

that eleven instalments were paid by the first respondent during the period

from 17.03.2006 to 17.07.2007. They are Rs.1,092/- on 17.03.2006,

Rs.2,252/- on 26.05.2006, Rs.1,119/- on 05.07.2006, Rs.1,220/- each on

11.08.2006, 27.09.2006, 02.11.2006, Rs.1,175/- on 04.01.2007, Rs.1,234/-

on 20.02.2007, Rs.1,201/- on 17.04.2007 and Rs.2,500/- each on

28.05.2007 and 17.07.2007. Aggregate of all these amounts comes to

Rs.16,433/-. But, as stated earlier, the Ext.D1 is an admitted document.

According to the learned counsel for the appellant, only an amount of

Rs.13,197/- was paid by the first respondent. The trial court also reckoned

only that much amount. But I find that it is an incorrect calculation. On

the face of it, Ext.D1 shows that an amount of Rs.16,433/- was collected in

eleven instalments from the first respondent by the appellant. It is

noticeable that the last remittance, that is Rs.2,500/- made on 17.07.2007,

has not been reckoned in Ext.P9 statement of accounts. This has not been

reckoned by the learned Magistrate also. In that case, the plea of the

appellant will become more weak and that of the first respondent is more

strong.

16. I have no doubt that Sudha Beevi, quoted supra, has no

application since the appellant has no case that any signed blank cheque

was obtained from the first respondent at the time of commencement of

the transaction. It may be true that a signed blank cheque was obtained at

that time. But that should not have been used by the first respondent

unless a consensus was arrived between the parties with regard to the

actual amount due. But it is certain that the actual remittances made by

the first respondent have not been reckoned by the appellant.

17. A perusal of Ext.P9 shows that the actual consideration of the

vehicle was Rs.33,900/-. It is evident from Ext.P10 also. The margin

money was Rs.6,800/-. The loan amount, that is the amount actually lent

by the appellant, was Rs.27,100/-. So the total amount found payable by

the first respondent was Rs.39,295/- which includes FC amount, may be

financial credit amount, of Rs.12,195/-. The first respondent was liable to

pay a total amount of Rs.39,295/- in 36 instalments at the rate of

Rs.1092/-. The documents produced by the parties indicate that the first

respondent was never regular in repayment of the amount. However, at

least in alternate months he has paid amounts. Till 17.07.2007, though

intermittently, he paid an amount of Rs.16,433/-, which includes the

defaulted instalment interest. But the last remittance has not been

reckoned by the appellant. Secondly, Rs.12,195/- shown payable by the

first respondent includes interest for the entire period of 36 months, during

the period of the entire hire purchase agreement. However, as rightly

pointed out by the learned Magistrate, before the completion of the period,

after few defaults, the appellant proceeded to re-possess the vehicle and

then sold it out in auction. Though justifiable under the Ext.P7 agreement,

the extreme step taken without showing any kind of indulgence, cannot be

appreciated in right earnest. It is also quite patent that the entire amount

remitted by the first respondent has not been reckoned by the appellant.

For this reason and since there are reasons to indicate that the amount

reckoned by the appellant is incorrect and that was done behind the back

of the first respondent, I am not persuaded to take the view that the Ext.P1

is supported by consideration. There is substance in the finding of the trial

court that it was not supported by consideration and therefore the appellant

is not entitled to draw the presumptions under Sections 118 and 139 of the

Act.

On consideration of the totality of circumstances and evidence, thus

it is obvious that sufficient reasons are not made out by the appellant to

interfere with the judgment under attack. The appellant is not entitled to

succeed. The appeal lacks merit and is dismissed.

Sd/-

K. HARIPAL JUDGE

okb/11.04.21 //True copy// P.S. to Judge