{"id":250057,"date":"2009-07-27T00:00:00","date_gmt":"2009-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/concord-leasing-hire-purchase-vs-p-bhargavan-on-27-july-2009"},"modified":"2014-10-14T23:11:29","modified_gmt":"2014-10-14T17:41:29","slug":"concord-leasing-hire-purchase-vs-p-bhargavan-on-27-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/concord-leasing-hire-purchase-vs-p-bhargavan-on-27-july-2009","title":{"rendered":"Concord Leasing & Hire Purchase … vs P.Bhargavan on 27 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Concord Leasing & Hire Purchase … vs P.Bhargavan on 27 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 183 of 2002(A)\n\n\n1. CONCORD LEASING & HIRE PURCHASE PVT.\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. P.BHARGAVAN, S\/O. NARENDRAN,\n                       ...       Respondent\n\n2. THE STATE OF KERALA,\n\n                For Petitioner  :SRI.JACOB ABRAHAM\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice S.S.SATHEESACHANDRAN\n\n Dated :27\/07\/2009\n\n O R D E R\n                   S.S. SATHEESACHANDRAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Crl.A.No.183 of 2002\n               - - - - - - - - - - - - - - - - - - - - - - - - -\n                          Dated: 27th July, 2009\n\n                                JUDGMENT\n<\/pre>\n
     Complainant is the appellant. The appeal is filed challenging the<\/p>\n
order of acquittal rendered in favour of the first respondent(accused)<\/p>\n
by the Sessions Judge, Kozhikode reversing the conviction and<\/p>\n
sentence imposed against him by the trial magistrate for the offence<\/p>\n
punishable under Section 138<\/a> of the Negotiable Instruments Act<\/p>\n
(hereinafter referred to as ‘the N.I.Act’).\n<\/p>\n
     2. Short facts involved in the appeal may be summed up thus:<\/p>\n
The complainant is a private company engaged in the business<\/p>\n
advancing finances on lease and hire purchase agreements. Towards<\/p>\n
the sum collected as loan, executing 10 promissory notes covering a<\/p>\n
period from 15.1.994 to 21.7.1994, for various sums, and            in<\/p>\n
discharge of the debt and liability thereunder, the accused issued<\/p>\n
Ext.P1 cheque for a sum of Rs.3,09,149\/- promising its encashment<\/p>\n
on presentation in due course is the case of the complainant. The<\/p>\n
cheque presented was, however, dishonoured due to insufficiency of<\/p>\n
funds in the account maintained by the accused. Statutory notice<\/p>\n
issued intimating dishonour and demanding the sum covered by the<\/p>\n
cheque not being responded with payment the complainant launched<\/p>\n
Crl.A.No.183\/02                  – 2 –<\/span><\/p>\n
prosecution against the accused for the offence under Section 138<\/a> of<\/p>\n
the N.I.Act filing a complaint. The accused, on appearance, pleaded<\/p>\n
not guilty when the particulars of the offence were made known.<\/p>\n
Complainant examined P.W.1 to P.W.4 and got marked Exts.P1 to<\/p>\n
P22 to prove its case. The accused questioned under Section 313<\/a><\/p>\n
Cr.P.C. reiterating his plea of innocence submitted that the<\/p>\n
documents produced by the complainant are forged and before<\/p>\n
entering into the money transaction with the complainant a signed<\/p>\n
cheque in blank form was collected from him, that subsequent loans<\/p>\n
were given only on discharge of the previous loan, that demand for<\/p>\n
returning the promissory notes which had been collected earlier in<\/p>\n
blank form with signature alone were declined on the pretext that<\/p>\n
they had been destroyed, and that no receipt was issued by the<\/p>\n
complainant on discharge of the earlier loan.     In support of his<\/p>\n
defence, he produced Exts.D1 to D4. The learned trial magistrate,<\/p>\n
after appreciating the materials produced, accepting the case of the<\/p>\n
complainant found the accused guilty of the offence, and he was<\/p>\n
thereupon convicted and sentenced to pay a fine of Rs.3,25,000\/-<\/p>\n
with default term of simple imprisonment for three months. In the<\/p>\n
appeal preferred by the accused against the conviction and sentence,<\/p>\n
after reappreciating the evidence and on hearing the counsel on both<\/p>\n
Crl.A.No.183\/02                    – 3 –<\/span><\/p>\n
sides, the learned Sessions Judge set aside the conviction and<\/p>\n
sentence and acquitted him of the offence. Correctness and legality<\/p>\n
of the order of acquittal so rendered by the learned Sessions Judge is<\/p>\n
challenged in this appeal by the complainant.\n<\/p>\n
      3. I heard the learned counsel on both sides.\n<\/p>\n
      4. Learned counsel for the complainant contended that the<\/p>\n
lower appellate court misread and misappreciated the evidence and<\/p>\n
applied wrong principles of law to enter an order of acquittal in favour<\/p>\n
of the accused, reversing the conviction founded against him by the<\/p>\n
trial magistrate. The accused had admitted of the execution of the<\/p>\n
cheque though he had denied the execution of the promissory notes<\/p>\n
when the loan amounts were collected, submits the counsel. The<\/p>\n
accused had also admitted, according to the learned counsel, the<\/p>\n
receipt of money from the complainant, but setting up a different<\/p>\n
version over the transaction. When that be the case, the lower<\/p>\n
appellate court was not justified, according to the learned counsel, in<\/p>\n
interfering with the conviction imposed against the accused by the<\/p>\n
trial magistrate for the solitary reason that the handwritings in Ext.P1<\/p>\n
cheque as to the entries made therein differ from the signature<\/p>\n
subscribed     which was admitted by the accused. The defence<\/p>\n
canvassed by the accused built upon the different handwritings seen<\/p>\n
Crl.A.No.183\/02                   – 4 –<\/span><\/p>\n
in filling up of Ext.P1 cheque is not worthy of any merit in the given<\/p>\n
facts of the case, contends the counsel placing reliance on Lillykutty<\/p>\n
v. Lawrance<\/a> (2003(3) KLT 721) wherein it has been held that where<\/p>\n
the handwriting of the payee’s name and the amount shown in the<\/p>\n
cheque differ from the handwriting of the drawer of the cheque it is<\/p>\n
not a ground to hold that it was not validly issued or the cheque was<\/p>\n
not duly executed. Learned counsel contended that when receipt of<\/p>\n
money and handing over of a signed cheque to the complainant is<\/p>\n
admitted by the accused, the burden was on the accused to show<\/p>\n
that it was handed over in blank form and there was no due<\/p>\n
execution of the instrument. The accused having not let in any<\/p>\n
positive evidence in support of that defence, it deserved only to be<\/p>\n
discarded as meritless, submits the counsel. Learned counsel,<\/p>\n
therefore, urged for setting aside the order of acquittal rendered in<\/p>\n
favour of the accused by the learned Sessions Judge and restoring<\/p>\n
the conviction passed against the accused by the learned trial<\/p>\n
magistrate by allowing this appeal. On the other hand, learned<\/p>\n
counsel for the accused supporting the impugned judgment of the<\/p>\n
learned Sessions Judge contended there there is no merit in the<\/p>\n
appeal and the materials produced in the case have unerringly<\/p>\n
established that the complainant had launched prosecution against<\/p>\n
Crl.A.No.183\/02                   – 5 –<\/span><\/p>\n
the accused forging various instruments even making false entries in<\/p>\n
Ext.P1 cheque which had been obtained from the accused in blank<\/p>\n
form with the signature alone. The accused had denied the execution<\/p>\n
of the cheque and in the given facts of the case without proving due<\/p>\n
execution of the instrument which the complainant has miserably<\/p>\n
failed, no conviction against the accused is permissible, submits the<\/p>\n
counsel. Previous notice issued by the complainant demanding the<\/p>\n
sum covered by the promissory notes without referring to Ext.P1<\/p>\n
cheque is also highlighted by the learned counsel to contend that the<\/p>\n
defence version is more probable and the case of the complainant is<\/p>\n
unworthy of acceptance. The appeal filed by the accused impeaching<\/p>\n
the correctness of the order of acquittal passed by the lower appellate<\/p>\n
court, according to the learned counsel for the accused, lacks merit,<\/p>\n
and it is liable to be dismissed.\n<\/p>\n
        5. The primary question that emerges for consideration is<\/p>\n
whether the lower appellate court was correct in interfering with the<\/p>\n
conviction founded against the accused by the trial magistrate taking<\/p>\n
a different view from that of the magistrate after reappreciating the<\/p>\n
materials tendered in the case. After going through the judgments of<\/p>\n
the trial magistrate and also the lower appellate court with reference<\/p>\n
to the materials tendered and the submissions made by the learned<\/p>\n
Crl.A.No.183\/02                    – 6 –<\/span><\/p>\n
counsel on both sides, I find that the reversal of the conviction and<\/p>\n
rendering an order of acquittal by the learned Sessions Judge in the<\/p>\n
appeal is proper, valid and unimpeachable. The case of the<\/p>\n
complainant is that the accused executed 10 promissory notes over a<\/p>\n
period of nearly six and half months, for various sums, during which<\/p>\n
loans were availed, and later in discharge of the liability thereunder<\/p>\n
he issued Ext.P1 cheque for a sum of Rs.3,09,149\/-. It is interesting<\/p>\n
to note that out of the ten promissory notes, the first nine of them for<\/p>\n
the sum ranging from Rs.6000 to Rs.45,000 were advanced over a<\/p>\n
period of 15.1.1994 to 11.2.1994. The last two of the above nine<\/p>\n
pronotes were on the same date, i.e. 11.2.1994, for            sums of<\/p>\n
Rs.13,000 and Rs.15,000. The transaction covered by the 10th<\/p>\n
promissory note was on 21.7.1994 for a sum of Rs.1,80,000\/-. To<\/p>\n
prove the loan transactions with the accused the complainant<\/p>\n
produced pronotes, eleven in number, Exts.P9 to P19, and examined<\/p>\n
its power of attorney, a bill collector of the company. In the complaint<\/p>\n
the case of the complainant was that the accused borrowed<\/p>\n
Rs.4,91,000\/- through ten different promissory notes with different<\/p>\n
dates and towards discharge of the liability the accused issued Ext.P1<\/p>\n
cheque for a sum of Rs.3,09,149\/- promising its encashment on<\/p>\n
presentation and agreeing to pay the balance amount due within one<\/p>\n
Crl.A.No.183\/02                 – 7 –<\/span><\/p>\n
year. There is no whisper in the complaint that any of the amount<\/p>\n
covered by the promissory note had been discharged by the accused.<\/p>\n
But when evidence was let in one more promissory note (Ext.P12),<\/p>\n
over and above the ten promissory notes stated in the complaint, for<\/p>\n
a sum of Rs.40,000\/- was produced. Ext.P12 promissory note is<\/p>\n
dated 24.1.1994. In the complaint giving the particulars of ten<\/p>\n
promissory notes with specific sums thereunder the complainant has<\/p>\n
alleged that the accused borrowed a sum of Rs.4,91,000\/- and<\/p>\n
towards partial discharge of that liability, Ext.P1 cheque was issued<\/p>\n
for a sum of Rs.3,09,149\/-. Particulars of the pronotes with the sum<\/p>\n
and date as alleged in the complaint are as hereunder:<\/p>\n
1. Pronote for a sum of Rs.30,000\/- dated 15.1.1994.<\/p>\n
2. Pronote for a sum of Rs.15,000\/- dated 18.1.1994.<\/p>\n
3. Pronote for a sum of Rs.40,000\/- dated 20.1.1994.<\/p>\n
4. Pronote for a sum of Rs.30,000\/- dated 28.1.1994.<\/p>\n
5. Pronote for a sum of Rs.6,000\/- dated 31.1.1994.<\/p>\n
6. Pronote for a sum of Rs.40,000\/- dated 3.2.1994.<\/p>\n
7. Pronote for a sum of Rs.45,000\/- dated 7.2.1995.<\/p>\n
8. Pronote for a sum of Rs.30,000\/- dated 11.2.1994.<\/p>\n
9. Pronote for a sum of Rs.15,000\/- dated 11.2.1994.<\/p>\n
10.Pronote for a sum of Rs.1,80,000\/- dated 21.7.1994.<\/p>\n
Crl.A.No.183\/02                   – 8 –<\/span><\/p>\n
The total amount as under the above promissory notes comes to<\/p>\n
Rs.4,31,000\/-. Obviously, the statement in the complaint with regard<\/p>\n
to the pronote for Rs.45,000\/- (Sl.No.7) showing the date as<\/p>\n
7.2.1995 might be a mistake, for the correct date of 7.2.1994.<\/p>\n
      6. Pronotes produced, 11 in number, and exhibited as Exts.P9<\/p>\n
to P19 to prove the loan transactions of the complainant leading to<\/p>\n
issue Ext.P1 cheque disclose of material discrepancy with the<\/p>\n
particulars of pronotes and sum stated in the complaint. The<\/p>\n
particulars of pronotes exhibited as Exts.P9 to P19 are thus:<\/p>\n
1. Ext.P9 pronote for Rs.30,000\/- dated 15.1.1994.<\/p>\n
2. Ext.P10 pronote for Rs.15,000\/- dated 18.1.1994.<\/p>\n
3. Ext.P11 pronote for Rs.40,000\/- dated 20.1.1994.<\/p>\n
4. Ext.P12 pronote for Rs.40,000\/- dated 24.1.1994.<\/p>\n
5. Ext.P13 pronote for Rs.50,000\/- dated 28.1.1994.<\/p>\n
6. Ext.P14 pronote for Rs.6,000\/- dated 31.1.1994.<\/p>\n
7. Ext.P15 pronote for Rs.40,000\/- dated 3.2.1994.<\/p>\n
8. Ext.P16 pronote for Rs.45,000\/- dated 7.2.1994.<\/p>\n
9. Ext.P17 pronote for Rs.30,000\/- dated 11.2.1994.<\/p>\n
10.Ext.P18 pronote for Rs.15,000\/- dated 11.2.1994.<\/p>\n
11.Ext.P19 pronote for Rs.1,80,000\/- dated 21.7.1994.<\/p>\n
The total sum as covered under these 11 pronotes (Exts.P9 to P19)<\/p>\n
Crl.A.No.183\/02                  – 9 –<\/span><\/p>\n
comes to Rs.4,81,000\/-. It has to be noted that the pronote covered<\/p>\n
by Ext.P12 Rs.40,000\/- dated 21.1.1994 is not included among the<\/p>\n
pronotes stated in the complaint. Similarly, Ext.P13 pronote dated<\/p>\n
28.1.1994 is for a sum of Rs.50,000\/- whereas in the complaint<\/p>\n
pronote dated 28.1.1994 is for a sum of Rs.30,000\/-.<\/p>\n
      7. The discrepancies as above with regard to the pronotes as<\/p>\n
stated in the complaint with reference to the pronotes exhibited,<\/p>\n
Exts.P9 to P19, and the total sum calculated thereunder, could not be<\/p>\n
treated as inadvertent    mistakes in drafting of the complaint and<\/p>\n
making reference to the pronotes with respective sums, is borne out<\/p>\n
by Ext.P20 agreement purported to have been executed by the<\/p>\n
accused acknowledging his liability for a sum of Rs.3,09,149\/-, the<\/p>\n
sum shown in Ext.P1 cheque. Ext.P20 agreement is dated 14.5.1994.<\/p>\n
No reference to Ext.P20 agreement, leave alone the circumstances<\/p>\n
under which it was executed, is stated in the complaint. Complainant<\/p>\n
has examined one of the witnesses in Ext.P20 agreement, P.W.3 to<\/p>\n
prove its execution by the accused. The evidence of that witness in<\/p>\n
no way improves the case of the complainant when the circumstances<\/p>\n
surrounding Ext.P20 agreement are examined. Before going into that<\/p>\n
question, particulars stated in Ext.P20 agreement with reference to<\/p>\n
the account numbers and the sum covered by the loan transactions<\/p>\n
Crl.A.No.183\/02                 – 10 –<\/span><\/p>\n
with the accused have to be looked into, which read thus:<\/p>\n
A\/c No.          Issued on        Amount Balance on 14.5.1994\n\n1200\/94          15.1.1994        30,000.00         28,149.00\n\n1202\/94          18.1.1994        15,000.00         15,000.00\n\n1204\/94          20.1.1994        40,000.00         40,000.00\n\n1206\/94          24.1.1994        40,000.00         40,000.00\n\n1208\/94          28.1.1994        50,000.00         50,000.00\n\n1210\/94          31.1.1994          6,000.00        6,000.00\n\n1212\/94          03.2.1994        40,000.00         40,000.00\n\n1215\/94          07.2.1994        45,000.00         45,000.00\n\n1216\/94          11.2.1994        30,000.00         30,000.00\n\n1218\/94          11.2.1994        15,000.00         15,000.00\n\n                                                    -----------------\n\n                                                    3,09,149.00\n\n                                                    ==========\n\n<\/pre>\n
The total sum shown in the agreement as due from the accused on<\/p>\n
the date of agreement is Rs.3,09,149\/-.\n<\/p>\n
      8. Whereas in the complaint, it is alleged that the transaction<\/p>\n
covered by Ext.P19 pronote for Rs.1,80,000\/- dated 21.7.1994 also<\/p>\n
formed part of the liability covered by Ext.P1 cheque in evidence<\/p>\n
through P.W.!, the power of attorney holder, the complainant<\/p>\n
Crl.A.No.183\/02                 – 11 –<\/span><\/p>\n
projected a case that transaction was different and did not form part<\/p>\n
of the sum covered by Ext.P1 cheque which was issued towards<\/p>\n
partial discharge of the liability      in respect of the previous<\/p>\n
transactions alone. In other words, the case developed by the<\/p>\n
complainant in evidence is based on Ext.P20 agreement and Exts.P9<\/p>\n
to P18 pronotes excluding Ext.P19 pronote advancing a case that<\/p>\n
after adjustment of the payment made by the accused under Ext.D4<\/p>\n
receipt in Ext.P9 promissory note, for the balance sum outstanding<\/p>\n
under the transaction covered by Exts.P9 to P18 pronotes Ext.P1<\/p>\n
cheque for a sum of Rs.3,09,149\/- was issued by the accused. In this<\/p>\n
context, the date of execution of Ext.P20 agreement which stand<\/p>\n
disputed by the defence advanced by the accused that signed cheque<\/p>\n
in blank form and pronotes and stamped papers, all in blank form,<\/p>\n
had been collected by the complainant-company, assumes much<\/p>\n
significance. Ext.P20 agreement is dated 14.5.1994. Long before<\/p>\n
filing the complaint, the complainant had issued an advocate notice<\/p>\n
dated 23.11.1994 to the accused in respect of which no reference is<\/p>\n
made in the complaint. That notice is produced by the accused and<\/p>\n
exhibited as Ext.D1. In Ext.D1 notice, the complainant has set forth a<\/p>\n
claim of Rs.4,89,149\/- from the accused towards the liability arising<\/p>\n
under the loan transactions making reference to the various pronotes<\/p>\n
Crl.A.No.183\/02                   – 12 –<\/span><\/p>\n
and also an agreement purported to have been executed by him<\/p>\n
acknowledging his liability. To that notice the accused gave a reply<\/p>\n
through an advocate disputing the agreement alleged acknowledging<\/p>\n
liability and   the execution of the pronote for Rs.1.80,000\/- on<\/p>\n
21.7.1994, while admitting that he had some money transactions<\/p>\n
with the complainant. Ext.P21 is that reply notice given by the<\/p>\n
accused. After receiving Ext.P21 reply, the complainant has filed the<\/p>\n
present complaint long thereafter, on the basis of Ext.P1 cheque<\/p>\n
without making any reference to the previous notice issued and the<\/p>\n
reply from the accused disputing the liability. After sending a reply<\/p>\n
covered by Ext.P21 disputing the liability specifically, denying the<\/p>\n
execution of Ext.P20 agreement and also Ext.P19 pronote for a sum<\/p>\n
of Rs.1,80,000\/-, if the case of the complainant were to be believed,<\/p>\n
the accused gave Ext.P1 cheque towards discharge of the liability for<\/p>\n
the pronotes covered by Exts.P9 to P18, nearly four months after<\/p>\n
sending Ext.P21 reply notice. Whether it is so, of course arise for<\/p>\n
consideration if only the complainant has presented such a case with<\/p>\n
specific particulars thereof in the complaint. That was not done. Still<\/p>\n
examining such a possibility, the reply notice sent by the accused<\/p>\n
when intimation of dishonour of Ext.P1 cheque was issued is crucial<\/p>\n
and of vital importance. Complainant has not produced and exhibited<\/p>\n
Crl.A.No.183\/02                   – 13 –<\/span><\/p>\n
copy of the notice sent to the accused on dishonour of Ext.P1 cheque.<\/p>\n
The reply notice sent by the accused through his advocate is<\/p>\n
produced and exhibited as Ext.P7 in evidence. He has specifically<\/p>\n
contended that a cheque in blank form was issued as demanded by<\/p>\n
the complainant on 19.2.1994 and forging false entries in that<\/p>\n
instrument, the notice had been issued by the complainant. He has<\/p>\n
also referred to the previous reply notice sent by him in response to<\/p>\n
the earlier notice given by the complainant. The reply notice further<\/p>\n
show that he had filed caveat petitions before the civil court<\/p>\n
anticipating institution of suits by the complainant to get advance<\/p>\n
notice from the court before passing of any interim orders in such<\/p>\n
proceedings. The issuance of advocate notice earlier and reply<\/p>\n
received    thereof   from   the   accused,  with   the    surrounding<\/p>\n
circumstances, disclose that the defence canvassed by the accused<\/p>\n
that the cheque was collected with his signature in blank form is more<\/p>\n
probable and it, further, discredits the version presented by the<\/p>\n
complainant in his evidence of which particulars are not furnished in<\/p>\n
its complaint.\n<\/p>\n
      9. The facts and circumstances involved in the case as referred<\/p>\n
to above, would indicate that an adjudication by a civil court<\/p>\n
regarding the liability of the accused in respect of the transaction<\/p>\n
Crl.A.No.183\/02                  – 14 –<\/span><\/p>\n
which he had with the complainant by instituting a proper suit before<\/p>\n
the appropriate court was necessary and unavoidable, and a<\/p>\n
complaint under Section 138<\/a> of the N.I.Act on Ext.P1 cheque alleged<\/p>\n
to have been executed by the accused, which was flatly denied by<\/p>\n
him, was not advisable nor proper. The sum covered by one among<\/p>\n
the promissory notes is not covered by Ext.P1 cheque is the version<\/p>\n
of P.W.1, the power of attorney of the complainant, and which is that<\/p>\n
promissory note has not been stated or explained in evidence.<\/p>\n
Complainant has a further case that in addition to the promissory<\/p>\n
notes, the accused had also executed an agreement dated 14.5.1994<\/p>\n
acknowledging its liability under Exts.P9 to P18 promissory notes for<\/p>\n
a sum of Rs.3,09,149\/-, the amount covered by the cheque. The<\/p>\n
accused had paid a sum of Rs.1851\/- as covered by Ext.D4 receipt<\/p>\n
and that was given credit to in the amount due and for the balance<\/p>\n
sum of Rs.3,09,149\/- Ext.P1 cheque was issued, is the conclusion<\/p>\n
formed by the learned trial magistrate. Strangely enough, no such<\/p>\n
case was alleged in the complaint nor deposed in evidence by P.W.1,<\/p>\n
the power of attorney holder of the complainant. On the contrary,<\/p>\n
when P.W.1 was examined, it has come out, the complainant had<\/p>\n
issued an advocate notice dated 23.11.1994 claiming an amount of<\/p>\n
Rs.4,89,149\/-. The evidence of P.W.1 would show that the<\/p>\n
Crl.A.No.183\/02                   – 15 –<\/span><\/p>\n
complainant is a private limited company which is advancing finance<\/p>\n
for vehicles on furnishing security. The most interesting aspect is that<\/p>\n
though a series of promissory notes had been produced, Exts.P9 to<\/p>\n
P19 covering a period of over six months, if the case of the<\/p>\n
complainant were to be believed when Ext.P1 cheque was issued<\/p>\n
towards discharge of the liability under ten promissory notes out of<\/p>\n
the eleven pronotes, after giving credit to the amount under Ext.D4<\/p>\n
receipt in Ext.P9 pronote, not even a single pai was claimed by the<\/p>\n
company towards interest on the finance advanced.       This has to be<\/p>\n
viewed in the backdrop that the promissory notes Exts.P9 to P19<\/p>\n
pronotes specifically state that the sum due is realisible with 24%<\/p>\n
interest per annum. A company advancing finances for purchase of<\/p>\n
vehicles after getting pronotes for the sum advanced with the liability<\/p>\n
to pay interest as stated above, was satisfied with the principal sum<\/p>\n
alone under the notes by collecting a cheque for such sum alone<\/p>\n
seems to be the case of the complainant if its case is to be accepted,<\/p>\n
which can be taken only with a pinch of salt.\n<\/p>\n
      10. The above circumstances viewed with another vitiating<\/p>\n
factor discrediting the complainant’s case as a whole, as noticed by<\/p>\n
the learned Sessions Judge, related to the writings on Ext.P1 cheque.<\/p>\n
The learned Sessions Judge has taken note that the admission of<\/p>\n
Crl.A.No.183\/02                  – 16 –<\/span><\/p>\n
P.W.1, the power of attorney holder, that the entries in the cheque<\/p>\n
are made in three different writings. It was further noticed that the<\/p>\n
handwritings in the entries    varied. P.W.1 would     state that the<\/p>\n
manager of the company wrote the entires in Ext.P1 cheque, but it<\/p>\n
was signed by the accused in the presence of the Managing Director<\/p>\n
by the accused. Neither the manager nor the managing director was<\/p>\n
examined in the case to prove the due execution of Ext.P1 cheque by<\/p>\n
the accused despite his specific contention that blank signed cheque<\/p>\n
and blank stamped promissory notes had been obtained by him for<\/p>\n
providing finance and, later, when repayments were made, the<\/p>\n
pronotes were not returned on the pretext that they were destroyed.<\/p>\n
The learned Sessions Judge, after appreciating the materials<\/p>\n
produced, concluded that due execution of Ext.P1 cheque by the<\/p>\n
accused has not been proved by the complainant and therefore the<\/p>\n
conviction imposed against him by the trial magistrate was liable to<\/p>\n
be reversed. Accordingly, setting aside his conviction, the learned<\/p>\n
Sessions Judge acquitted the accused of the offence. I do not find any<\/p>\n
impropriety in the conclusion drawn and the findings so arrived by the<\/p>\n
learned Sessions Judge in the given facts of the case.<\/p>\n
      11. There is no merit in the submission of the learned counsel<\/p>\n
for the complainant that the burden was on the accused as he had<\/p>\n
Crl.A.No.183\/02                   – 17 –<\/span><\/p>\n
admitted of handing over a signed cheque and receiving of finance<\/p>\n
from the company. Ext.P1 cheque was duly executed by the accused<\/p>\n
has to be established by the complainant giving cogent and reliable<\/p>\n
evidence in the light of the defence canvassed that it was given in<\/p>\n
blank form with signature alone, and more particularly, on the<\/p>\n
materials presented by the complainant company prima facie<\/p>\n
indicating that the transactions relating the issue of the cheque was<\/p>\n
towards the principal sum covered by the promissory notes alone is<\/p>\n
unbelievable without convincing proof. The decision relied by the<\/p>\n
learned counsel for the appellant, namely,     Lillykutty v. Lawrance<\/a><\/p>\n
(2003(3) KLT 721) has no application to the facts of the present case<\/p>\n
where the case of the complainant is found seen discredited not only<\/p>\n
by the difference in the writings on the instrument, but due to various<\/p>\n
other vitiating circumstances referred to earlier. The apex court in<\/p>\n
Narayana Menon v. State of Kerala<\/a> [2006(3) KLT 404(SC)] has<\/p>\n
held that to rebut the presumption covered by the N.I.Act, what is<\/p>\n
needed is to raise a probable defence. For the said purpose, it is<\/p>\n
stated the accused need not adduce any evidence, but could show<\/p>\n
that his defence is probable on the materials tendered by the<\/p>\n
complainant itself. Whether the accused has discharged that burden,<\/p>\n
it has been stated by the apex court, would be a question of fact<\/p>\n
Crl.A.No.183\/02                  – 18 –<\/span><\/p>\n
depending upon the facts and circumstances involved in the case. In<\/p>\n
the present case not only that the due execution of Ext.P1 cheque by<\/p>\n
the accused was not established by the complainant but on the<\/p>\n
materials produced by the complainant itself it is shown that the<\/p>\n
defence canvassed by the accused that blank signed cheque and<\/p>\n
blank promissory notes had been collected by the complainant<\/p>\n
company at the time of providing finance is probable. In such<\/p>\n
circumstances, the order of acquittal passed by the learned Sessions<\/p>\n
Judge reversing the conviction rendered against him by the trial<\/p>\n
magistrate is unimpeachable.\n<\/p>\n
      The appeal is devoid of any merit and it is dismissed.<\/p>\n
srd                          S.S. SATHEESACHANDRAN, JUDGE\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Concord Leasing & Hire Purchase … vs P.Bhargavan on 27 July, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 183 of 2002(A) 1. CONCORD LEASING & HIRE PURCHASE PVT. … Petitioner Vs 1. P.BHARGAVAN, S\/O. NARENDRAN, … Respondent 2. THE STATE OF KERALA, For Petitioner :SRI.JACOB ABRAHAM For Respondent :PUBLIC […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-250057","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nConcord Leasing & Hire Purchase ... vs P.Bhargavan on 27 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/concord-leasing-hire-purchase-vs-p-bhargavan-on-27-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Concord Leasing & Hire Purchase ... vs P.Bhargavan on 27 July, 2009 - 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