2000(3) ALL MR (JOURNAL) 10
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

K.B. SIDDAPPA, J.

Adithya Alkalods Limited, Hyderabad And Ors., Vs. Ncc Finance Limited, Hyderabad & Anr.,

Cri. R.C. No. 971 of 1999

28th March, 2000

Petitioner Counsel: Mr. C. SRINIVAS
Respondent Counsel: Mr. B. VISWANATHA REDDY

Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Bill Discounting facility availed by accused and the undated cheque in question deposited as security - Bill discounting facility subsequently turned into a hire purchase agreement in the furtherance of which accused issued 36 cheques - Default in payment of instalments-Complainant made use of the cheque issued during bill discounting facility transaction and presented the same which returned unpaid - Complainant held, cannot enter the date in the cheque given earlier and present the same and claim the amount - Failure of accused to reply to the notice of dishonour by itself is not enough to hold that the case of the complainant is proved - Conviction set aside.

JUDGMENT

JUDGMENT :- The petitioners/accused were found guilty of the offence under Section 138 of Negotiable Instruments Act.

2. The complaint is that the accused availed bill discounting facility. In pursuance of Ex.D1 letter which is admittedly written by the complainant, the undated cheque in question was deposited as security. Subsequently, the bill discounting facility was turned into a hire-purchase agreement on 30-8-1995. In pursuance thereof, the accused has to pay the amount in 36 instalments. In furtherance thereof, the accused issued 36 post dated cheques. It seems, the accused paid only four instalments. The case of the defence is that the complainant made use of the cheque issued during bill discounting facility transaction, dated it as 18-2-1997 and presented the same. When the cheque was dishonoured, the case was filed. It is the further case of defence that the cheque dated as 18-2-1997 cannot be made use of because that was issued when the bill discounting facility was in vogue. Subsequently another agreement in the form of hire-purchase has come into force. If there is any default in payment of the instalments it is open for the complainant to make use of the cheques issued for payment of the instalments and proceed against the accused. The complainant cannot fill up the undated cheque issued during the bill discounting facility transaction, and claim the amount. To this effect, Ex.D2 was relied upon which is issued in the year 1995. Ex.D2 is the letter of the accused addressed to the complainant requesting return of the undated cheque which was in deposit with the complainant in view of the subsequent hire-purchase agreement and in view of the 36 cheques issued in lieu of instalments payable under the hire-purchase agreement. The learned Magistrate observed that Ex.D2 is true. However, he declined to give any effect to it because the accused did not choose to reply to Ex.P1O notice and because of other evidence in favour of the complainant.

3. There is no dispute that EX.D1 was issued by the complainant intimating the accused that a post dated cheque should be deposited as security for the bill discounting amount. Therefore, it is evident that this cheque was made use of by putting the date as 18-2-1997. This is not open to the complainant. The blank cheque issued worked out when the subsequent hire-purchase agreement came into force, for enforcement of which the accused has issued 36 fresh cheques. If there are any defaults in payment of instalments, certainly the complainant can make use of the cheques given subsequently under hire-purchase agreement. The complainant cannot enter the date on the cheque given earlier and present the same and claim the amount. It is true that the accused did not reply to EX.PIO notice. But, that itself is not enough to hold that the case of the complainant is proved. The cheque utilised and now marked as Ex.P8, has worked out and that cannot be made use of for enforcement of subsequent hire-purchase agreement. Certainly, the case of the complainant is not based on sound principles.

4. The conviction and the sentences are set aside. The fine amount, if any paid shall be returned to the accused.

5. The criminal revision case is allowed.

Revision allowed.