TaxTMI 
TaxTMI 
2022 (1) TMI 6
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.... for ECS with the banker with endorsement of Miscellaneous and insufficient funds. After complying the statutory notice, three private complaints have been filed under Section 138 of the Negotiable Instruments Act. 3. The quash petitions are filed mainly on the ground that the Petitioners/accused have obtained housing loan of Rs. 2,00,95,000/- on 15.07.2011 from the Respondent by entering into a loan agreement for purchase of the property situated at Plot 7, Balaji Nagar, 21st Street, Velacherry, Chennai. The said amount was payable with monthly rests (EMI) of Rs. 2,22,130/- and with an EMI of Rs. 2,41,056/- with interest revision payable in 180 equated monthly instalments. The petitioners also executed a mortgage in favour of the Respondent over the property and the Petitioners also regularly remitting the monthly EMI rests for the said Loan Account until 2014. 4. When the matter stood thus, it has come to the notice of the petitioners that the property was acquired by the Government prior to their purchase for the purpose of MRTS usage. They have challenged the 4(1) notification of the State Government under the Land Acquisition Act before this Court in W.P. No. 6406 of 2014 wh....
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....l mortgage property as contemplated under Section 73 of Transfer of Property Act. It is further contention that even the right of the Respondent exist under Section 73 of the T.P. Act, the enhancement of compensation not been claimed by the Respondent, it is not open to the Respondent to claim insufficient amount due under the mortgage. Hence, submitted that the cheque in question is not enforceable. In support of his contention he also relied upon the Honourable Apex Court judgment in Krishna Prasad and ors. vs. Gauri Kumari Devi [AIR 1962 SC 1464] and Sundaram Finance Ltd., vs. State of Kerala and Ors. [AIR 1966 SC 1178]. Therefore, submitted that entire proceedings has to be quashed. 8. Learned counsel appearing for the Respondent submitted that the plea sale and mortgage void after issuance of 4(1) Notification is unsustainable. The sale after Section 4(1) notification is at the risk of the purchaser and only after under Section 6 declaration the land vest with the State. He has also contended that the purchaser after 4(1) notification would not be entitled to challenge the acquisition, however, he would be entitled to compensation or enhanced compensation as lawful owner. Hen....
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.... The Respondent being a secured creditor was paid a compensation amount of Rs. 56,14,840/-. Much emphasis have been made by the learned counsel for the Petitioner that as the acquired property Compensation has already been paid and cheque issued towards the such loan is not enforceable and there is no legal enforceable debt. Much reliance has been placed in the Judgment of the Kerala High Court in Sudha Beevi vs. State of Kerala [2004 Crl.L.J. 3418] wherein it is held that once the financier/owner under hire purchase agreement exercised the option of seizure of the vehicle, the post dated cheques obtained from the hirer cannot be presented for encashment after the seizure. The owner has to take recourse to other legal remedies for recovery of the balance amount. If and when the vehicle is sold subsequently, the owner can recover the balance amount after adjusting the sale proceeds of the vehicle. 12. Similar view also taken by the Chhattisgarh High Court at Bilaspur in Rajkumar Sharma vs. Shriram Finance and Co. Ltd., [2014 (143) AIC 682]. 13. In Shiv Kumar and Anr. vs. Union of India and Ors. [ (2019) 10 SCC 229] the Honourable Apex Court relying upon the previous judgment of th....
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....SC 1178] the Apex Court has held that the intention of the appellants in obtaining the hire-purchase and the allied agreement was to secure the return of loans advanced to their customers, and no real sale of the vehicle was intended by the customer to the appellants. The transactions were merely financing transactions. 17. As per the dictum of the Apex Court in the Hire Purchase Agreement the ownership retained such agreement is only to intend to secure the loan not intend to sale of vehicle and such contracts made were merely a financial transaction. Whereas in the given case it is the admitted case that there was a mortgage executed between the parties. Though it is contended that the petitioner that such mortgage itself is not void, this Court cannot go into the issue at present. Whether the mortgage is affected after notification u/s. 4(1) or u/s. 6 Declaration is not an issue before this Court. It is admitted case of both sides that there was mortgage in favour of the Respondent, after the acquisition, the Respondent has obtained the compensation of Rs. 56,14,840/- as indicated above. 18. Sub-clause 2 Section 73 of the Transfer of Property Act makes it very clear that where....
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....of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No. 3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No. 3 and respondent No. 2. Without keeping in view the statutory presumption raised under Section 139....