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2021 (10) TMI 288 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally enforceable debt or not - failure to prove the cheque - HELD THAT:- There is no evidence as to when the vehicle was exactly seized, what was the condition of the vehicle and to whom it was sold, whether it was sold by auction or by any mutual agreement is not at all forthcoming. Hence, it appears that the complainant has managed the things amongst themselves and disposed of the vehicle. Complainant in the complaint nowhere asserted regarding seizure of the vehicle though PW. 1 claims that he has intimated the sale to accused No. 1 orally. The said contention cannot be accepted as the company is dealing with the matter and it is not accepted that company deals orally - it appears that the complainant has managed the things amongst themselves and disposed of the vehicle. Complainant in the complaint nowhere asserted regarding seizure of the vehicle though PW. 1 claims that he has intimated the sale to accused No. 1 orally. The said contention cannot be accepted as the company is dealing with the matter and it is not accepted that company deals orally. It is evident that the cheque dated 19.12.2013 is obtained by the complainant at the time of execution of the agreement Ex. P6 itself and it is a post dated cheque - The evidence on record disclose Ex. P1 when compared with Ex. P6, establish that it is the post dated cheque issued at the time of execution of Ex. P1. Even that apart, account statement itself discloses that no proper account is maintained and PW. 1 does not know anything about this. There is no evidence as to when exactly the vehicle was seized and admittedly no notice was issued to the complainant and after seizure, the hypothecation agreement came to an end and again the complainant wanted to proceed against the accused. However, when the vehicle was sold is also not forthcoming. Hence, it is evident that the documents produced by the complainant are not at all maintained in proper way and they have failed to establish legally enforceable debt to the tune of ₹ 3,60,000/- as referred in Ex. P1. Merely admission of signature of Ex. P1 does not assist the prosecution in proving the guilt of the accused. Though the presumption is in favour of the complainant, the evidence and cross examination of PW. 1 and the documents itself disclose that the presumption stands rebutted. No material evidence is placed by he prosecution in this regard. The learned magistrate has considered all these aspects in proper perspective and arrived at a just decision. Hence, the judgment of the trial Court does not call for any interference and it is sustainable under law. The Court places its appreciation on the record of the assistance rendered by the amicus curiae - Appeal dismissed.
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