G MURUGAN Vs. CHOLAMNDALAM INVESTMENT FINANCE COMPANY LIMITED

JUDGEMENT

(1.) 1.(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records from the Honourable VII Magistrate Court, George Town, Chennai, relating to the petition filed in C.C.No.11486 of 2003 on the file of VII Metropolitan Magistrate's Court, George Town, Chennai and quash the same.The learned counsel for the petitioners submitted that the petitioners have come forward with this petition seeking for the relief of quashing the proceedings initiated against the petitioners in C.C.No.11486 of 2003 on the file of the learned VII Metropolitan Magistrate, George Town, Chennai, on the basis of the complaint preferred by the respondent for the alleged offence under Section 138 of the Negotiable Instruments Act.

(2.) IT is contended that admittedly there was a hire-purchase agreement for the purchase of a vehicle by the petitioners and the petitioners had also issued post-dated cheques in favour of the respondent/complainant. IT is submitted that the respondent has also already on the ground of default in payment of instalments initiated action and seized the vehicle and the vehicle was already sold and the amount was realised by the respondent/complainant. The learned counsel for the petitioners also submitted that, therefore, there is absolutely no existence of liability on the part of the petitioners in respect of the disputed dishonoured cheques involved in this case. IT is submitted that out of 36 cheques, the complainant has presented only six cheques. Therefore, it is contended by the learned counsel for the petitioners that there is absolutely no legally enforceable liability on the part of the petitioners to the respondent/complainant on the basis of the hire-purchase agreement. Therefore, it is submitted that the proceedings initiated against the petitioners is liable to be quashed.

(3.) THE admitted case of the petitioners as well as the respondent/complainant is that there was a hire-purchase agreement entered into between the petitioners and the respondent/complainant. THE only ground raised by the petitioners for seeking the relief of quashing the proceedings is to the effect that already the vehicle of the petitioners was seized on the ground of default in payment of instalments and thereafter, the respondent/complainant company sold the vehicle and also realized the amount. THE learned counsel for the petitioners submitted that the hire-purchase agreement itself is terminated in view of the seizure and sale of the vehicle. However, considering the submissions of both sides, the undisputed fact remains on the perusal of the impugned complaint is that there is a specific averment made in the complaint itself to the effect of hire-purchase agreement entered between the parties and default committed by the petitioners and thereafter the vehicle was seized as per the clause and condition contained in the hire-purchase agreement and ultimately selling the vehicle and realising the amount to the extent from the sale proceeds. It is mentioned in the complaint that after adjusting the said amount from the sale of the vehicle, there was still dues to be paid by the petitioners and as such the six cheques involved in the complaint were presented and the same were dishonoured and as such the respondent/complainant is constrained to file the present complaint. THErefore, it is crystal clear from the reading of the complaint that there was a specific mention about the subsisting liability. It is also relevant to refer Section 139 of the Negotiable Instruments Act which contemplates presumption as reads hereunder:"Section 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability."THErefore, it is very clear from the above said provision that once the cheque is issued by the accused in favour of the complainant it has to be presumed that the cheque is issued only towards the legally enforceable liability. Of course, the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable one and it is open to the petitioners to rebut the presumption by placing reliance on the materials available on record.