Vijay Transport Corporation And ... vs Mafatlal Finance Co. Ltd. And Anr.
2003 Latest Caselaw 1222 Bom

JUDGMENT

V.M. Kanade, J.

1. By this application, the petitioners are challenging the judgment and order dated September 28, 1999 passed by the Chief Metropolitan Magistrate. Vth Court, Boiwada, whereby the petitioners are convicted and sentenced to pay a fine of Rs. 2 lacs and in default of suffer simple imprisonment for a period of six months and further out of the fine amount. Rs. 1,80,000/- was directed to be paid to the complainant. The petitioner No. 2 is the original accused and is partner of M/s. Vijay Transport Corporation. The said order of the Metropolitan Magistrate has been confirmed by the Sessions Judge. Bombay by dismissing the appeal filed by the petitioner. The petitioners have filed this criminal application under Section 482 of the Code of Criminal Procedure challenging the aforesaid orders.

2. The brief facts which are necessary for the purpose of deciding this criminal application are summarised as under:

Petitioner No. 1 is the partnership firm and petitioner No. 2 is a partner of the said firm. Respondent No. 1 is a company registered under the Companies Act and is engaged in financing companies, firms, individuals for the acquisition of motor vehicles under the terms and conditions contained in the agreement for hire purchase. The petitioner and respondent No. 1 entered into hire purchase agreements for the purchase of five trucks on or about 21st April, 1995. Thereafter the petitioners took possession of five trucks and executed necessary documents and also issued 36 post dated cheques for the future hire purchase charges. The petitioners were unable to pay the hire purchase charges after some time and thereafter the respondent Nos. 1 on or about February 5, 1997 seized four trucks of the petitioners and sold the said trucks to the third parties. After the sale of the said trucks, without informing the petitioners, the cheques for the hire purchase charges of the said trucks falling due on the dates of the said seizure were deposited in the Bank. The petitioners' case is that there was no enforceable liability under the three cheques. The case of the petitioners was that under several clauses of the agreements there was no enforceable liability and, therefore, the provisions of Section 138 of the Negotiable Instruments Act, were not attracted to the case. The said defence of the petitioners was not accepted by the Trial Court and the learned Magistrate convicted the petitioner which conviction has been affirmed by the Sessions Judge.

3. The learned Counsel for the petitioner submitted that there are several clauses in the agreement which are of relevance to decide whether or not there is any enforceable liability under the contract. He has submitted that Clauses 8 and 9 of the said agreement lay down as to what would be the exact liability of the applicant in the event of his failure to pay hire purchase charges. He submitted that the Clause 9 of the agreement, in essence, states the exact procedure of calculating the liability of the petitioners in case of default and Clause 15 states one of the conditions which respondent No. 1 had to comply before proceeding against the petitioners. It was submitted by the learned Counsel for the petitioners that in the cross-examination of the witnesses which were examined on behalf of respondent No. 1, the liability against the petitioner was not proved. It was submitted that in the cross-examination witness No. 1 for the complainant, the said witness was unable to state what was the exact amount due and payable to respondent No. 1 after the trucks were sold by the respondents. It was submitted that therefore the provisions of Section 138(3) of the Negotiable Instruments Act are not attracted.

4. None appears on behalf of the respondent. Though served and though Advocate's notice was given by the Counsel appearing on behalf of the petitioner that the matter would be decided finally.

5. The present criminal application has been filed by the petitioner under Section 482 of the Code of Criminal Procedure and is challenging the order passed by the Sessions Judge and Trial Court, convicting him under Section 255(ii) of the Code of Criminal Procedure. It is the settled position in law that while exercising the inherent powers vested in this Court under Section 482 of the Code of Criminal Procedure, the High Court normally does not set aside a finding of fact which is recorded concurrently, unless it is perverse. The scope for interference by this Court under Section 482 of the Code is, therefore, very limited: For, the Trial Court and Sessions Court have appreciated the evidence on record and have come to a conclusion that the cheques were issued by the petitioners and those cheques were dishonoured. That technical aspects of the case are not disputed by the petitioner in Trial Court. The submission was made by the learned Counsel for the petitioners that in view of the Clauses 8, 9 and 15 not having been complied with by respondent No. 1, the liability of the petitioner was not established. This submission cannot be accepted. The Trial Court has after examining the evidence on record has come to the conclusion that the cheques were issued by the petitioners and that they had committed default in payment of the hire purchase charges and consequences of which the trucks were seized and the cheques which were deposited were dishonoured. Therefore, in my view the finding of the Trial Court as well as the Sessions Judge cannot be interfered with. The only question which falls for consideration is whether the sentence which was imposed by both the Courts below is reasonable.

The Metropolitan Magistrate has directed the petitioners should pay Rs. 2 lacs towards the find and in default to suffer simple imprisonment for a period of six months and has further directed that out of the said amount of fine, if paid, an amount of Rs. 1,80,000/- is to be given to the complainant by way of compensation. In my view, the said sentence imposed by both the Courts below will have to be reduced. It is an admitted position that on or about February 1997, the trucks of the petitioners were sized. Till that time, the petitioner has paid instalments regularly. Thus, from April 1995 to February 1997, i.e. for a period of more than two years, the petitioners have paid the instalments to respondent No. 1. Therefore more than 2/3rd amount which was due towards the hire purchase charges of said trucks has already been paid. Though, there was specific clause in the agreement determining the liability before taking any action, respondent No. 1 after selling the trucks did not determine the said liability and proceeded to deposit the cheques in the Bank. In this view of the matter, the fact remains that the question as to whether amount payable to respondent No. 1 was not determined by respondent No. 1 before they deposited the cheques in the Bank. Defendant No. 1 had received more than 2/3rd amount during the initial period of two years and also sold the trucks. Thus, they had virtually recovered the amount which was due and payable.

6. The complainant has examined three witnesses. Witness No. 1 which was examined on their behalf, in cross examination, could not state the exact liability of the petitioners after the trucks were sold. In these peculiar facts and circumstances of the case. I am of the view that the fine of Rs. 2 lacs which was imposed on the petitioner will have to be reduced. Thus, the finding of fact of Trial Court and appellate Court are confirmed but the sentence imposed on the petitioner is reduced. The petitioner is, therefore, convicted under the provisions of Section 138 of Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs 50,000/- and in default to suffer simple imprisonment of two months. If the amount of fine is paid by the petitioner, the said amount of Rs. 50,000/- is to be given to the complainant by way of compensation. It is made clear that if, pursuant to the order of the Trial Court, the amount of Rs. 2 lacs is deposited by the petitioner and the same is withdrawn by respondent No. 1, in that event the petitioner would be entitled to seek refund of the same, i.e. amount of Rs. 1,30,000/- from the respondent No. 1 and Rs. 20,000/- which has been deposited in the Trial Court. In case the amount of Rs. 20,000/- has also been paid to the respondent No. 1, the petitioner would be entitled to seek refund of the same.

7. With the above modifications, the judgment and order of the Metropolitan Magistrate, Vth Court, Boiwada and the Sessions Judge, Mumbai is confirmed. Criminal Application is partly allowed and accordingly stands disposed of.