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TMI Blog2021 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sake of convenience parties herein are referred to their original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are that accused has availed financial assistance from the complainant for purchase of Mahindra vehicle of 2011 model bearing registered No. KA.26/TA-4266 by executing the agreement of hypothecation and total value of the agreement is Rs. 4,56,280/-. It is also specifically asserted that he has agreed to repay the loan amount in periodical installments, but he has defaulted in payment of periodical installments and finally became due to the complainant - Company for a sum of Rs. 3,60,000/-. It is alleged that in discharge of the said amount he has issued a cheque for Rs. 3,60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also perused the records in detail. 5. The learned counsel for the appellant would contend that the judgment and order of the Court below is erroneous, perverse and capricious and calls for interference. It is submitted that Court below has not appreciated the facts involved in this case and has not properly appreciated the oral and documentary evidence. That nowhere in the agreement there is observation that after repossession of the hypothecated vehicle the agreement comes to end and the said observation is erroneous. That the observation of the trial Court that the complainant had issued post dated cheque at the time of execution of the agreement, is without any evidence and the said observation is erroneous and lead to miscarriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all these aspects have been considered by the trial Court and the legally enforceable debt itself is not established and hence, the trial Court is justified in acquitting the accused and as such he would contend that judgment of acquittal passed by the trial Court does not call for any interference. Hence, he would seek for dismissal of the appeal. 7. Having heard the arguments and perusing the records, now the following point would arise for my consideration: Whether the judgment acquittal passed by the trial Court is sustainable in the eye of law? 8. It is to be noted here that according to the complainant the accused has availed loan for purchase of Mahindra vehicle bearing No. KA.26/TA-4266 by executing a loan cum hypothecation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4,56,280/- and the pleadings are also silent regarding the date of availment of loan. 11. On the contrary, in the cross examination PW. 1 admitted that the loan of Rs. 3,50,000/- was advanced. If that is the case then how the agreement value has come to Rs. 4,56,280/- is not at all forthcoming. No explanation is given in the entire evidence. The date of advancement of the loan is also not forthcoming. It is alleged that the accused has committed default. He claims that the vehicle was seized for default in payment and sold for Rs. 2,70,000/-. The vehicle was alleged to have been seized within 1 year and sold it for Rs. 2,70,000/- out of the loan amount of Rs. 3,50,000/-. Further certain payments were also made by the accused, then there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x. P6 itself and it is a post dated cheque. Hence, in view of the decision of the Hon'ble Apex Court reported in 2014 12 SCC 539 in the case of M/s. Indus Airway Pvt. Ltd. and others vs. M/s. Magnum Aviation Pvt. Ltd. and another, wherein the Hon'ble Apex Court has clearly observed that the post dated cheque issued cannot be considered towards discharge of legally enforceable debt or otherwise liability and consequently the offence for dishonour of cheque under Section 138 of NI Act is not attracted. 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 mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 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. 15. Learned counsel for the appellant has placed reliance on unreported decision of this Court in Crl.A. No. 100213/2015 and Crl.A. No. 100186/2015 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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