Karnataka High Court
M/S. Shriram Transport Finance Co.Ltd vs Smt. Renuka Vishwanath Bangera on 2 August, 2024
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NC: 2024:KHC:30603
CRL.A No. 1158 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1158 OF 2013 (A)
BETWEEN:
M/S. SHRIRAM TRANSPORT
FINANCE CO. LTD, HAVING
ITS REGISTERED OFFICE
AT NO. 123, ANGAPPA
NAICKEN STREET, CHENNAI
WITH ITS DIVISIONAL & BRANCH
OFFICE AT VIJAYASHREE ARCADE
OPP. PADAVU HIGH SCHOOL,
NANTHOOR, MANGALORE - 575 007
AND REPRESENTED BY ITS
MANAGER (LEGAL)
MADHUSUDHAN M.R.,
Digitally signed S/O R.K. MANAVI
by SWAPNA V AGED ABOUT 48 YEARS
Location: high ...APPELLANT
court of
karnataka (BY SRI. M.J. ALVA, ADVOCATE)
AND:
SMT. RENUKA VISHWANATH BANGERA
W/O VISHWANATH BANGERA
AGED ABOUT 41 YEARS
R/AT NERALA PADAVU HOUSE
GANJIMATA POST
MANGALORE TALUK
D. K. - 575 011
...RESPONDENT
(BY SRI. CHANDRANATH ARIGA .K., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S. 378(4) CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED: 11.10.2013 PASSED BY THE
JMFC- V COURT, MANGALORE IN C.C.NO.933/2007 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
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NC: 2024:KHC:30603
CRL.A No. 1158 of 2013
ACT. THIS CRIMINAL APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in C.C.No.933/2007, on the file of
learned JMFC (V Court), Mangalore, is impugning the judgment
dated 11.10.2013, acquitting the accused for the offence
punishable under Section 138 of Negotiable Instruments Act
(for short 'NI Act').
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case as made out by the
complainant is that, the complainant is a public limited
company doing financial business in the transport sector. It had
lent an amount of Rs.3,16,000/- to the accused on 01.01.2005,
by entering into a loan-cum-hypothecation agreement for the
vehicle bearing registration No. KA-19-B-8907. The accused
had not repaid the loan amount and towards discharge of
legally recoverable debt, issued the cheque dated 19.12.2006
for the amount that was due i.e., Rs.3,16,000/-. When the
cheque was presented for encashment, the same was
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dishonored as payment stopped. In spite of issuance of legal
notice and service of the same on the accused, he has not paid
the cheque amount, but on the other hand, issued a frivolous
reply. Thereby, the accused has committed the offence
punishable under Section 138 of NI Act.
4. The complainant got examined its officer as PW-1
and got marked the documents as per Ex-P1 to P11 in support
of its contention. The accused has examined herself as DW-1,
her husband as DW-2 and got marked the documents as per
Ex-D1 to D54 in support of her contention. The Trial Court after
taking into consideration all the materials on record, acquitted
the accused by holding that the complainant is not successful in
proving the guilt of the accused for the offence under Section
138 of NI Act beyond reasonable doubt. Hence, the
complainant is impugning the said judgment of acquittal.
5. Heard Sri M. J. Alva, learned counsel for the
appellant and Sri. Chandranath Ariga K, learned counsel for the
respondent. Perused the materials including the Trial Court
records.
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6. Learned counsel for the appellant contended that,
the appellant is a financial company, which admittedly lent
amount to the accused as per loan-cum-hypothecation
agreement dated 01.01.2005, which is marked as Ex-P10. DW-
1 is the accused and DW-2 is her husband. Both the witnesses
have admitted the agreement-EX-P10. The accused has also
admitted that the cheque-Ex-P1 belongs to her and it bears her
signature. Under such circumstances, the complainant has
discharged its burden of proving the existence of legally
recoverable debt and issuance of the cheque in discharge of the
same. The presumption under Sections 118 and 139 of NI Act
would come into operation and the burden shifts on the
accused to rebut the presumption.
7. Learned counsel submitted that even though the
accused has produced various invoices to contend that the loan
amount was already repaid, the invoices were dated much
earlier to the agreement-Ex-P10. Therefore, it is clear that
those invoices are not relating to the loan in question.
8. Learned counsel submitted that there was another
loan obtained by the accused during 2003. The invoices
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produced by the accused relates to the said loan account and it
is not disputed by the complainant that the said loan is already
repaid. But the Trial Court committed an error in placing
reliance on those invoices to acquit the accused. The approach
of the Trial Court is illogical and illegal. Therefore, he prays for
allowing the appeal in the interest of justice.
9. Per contra, learned counsel for respondent opposing
the appeal submitted that according to the complainant, the
agreement as per Ex.P10 was executed. It is not a disputed
document, but issuance of the cheque is disputed by the
accused. PW-1 is cross examined with reference to the
documents produced by the complainant. PW-1 categorically
admits that Rs.1,81,484/- was paid by the accused after the
date of Ex-P11. He further admits receipt of Rs.2,40,000/- as it
is the proceeds of sale of the vehicle, which admittedly,
credited to the loan account of the accused. PW-1 also admits
receipt of Rs.87,000/- from the accused. Therefore, in all
Rs.5,08,484/- was paid by the accused, even as per the
admission made by PW-1. If that is the case, there is no basis
for Ex-P11, according to which, a sum of Rs.3,16,961/- was
due. When Ex-P11 is falsified, it cannot be said that the said
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amount was due from the accused to the complainant for
issuance of the cheque in question.
10. Learned counsel submitted that since the
complainant had obtained loan by entering into loan-cum-
hypothecation agreement, the cheque in question was obtained
as a security. Even after repayment of the entire amount, the
cheque was filled in and presented for encashment with
imaginary figure. Therefore, the accused had issued 'stop
payment' instruction to the bank and the cheque was
dishonored. It was not for the reason that there was insufficient
fund in the account of accused. Under such circumstances, the
Trial Court was right in acquitting the accused and there are no
reasons to interfere with the impugned judgment of the
acquittal. Hence, he prays for dismissal of the appeal.
11. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
"Whether the impugned judgment of
acquittal suffers from perversity or
illegality and calls for interference by this
Court?"
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My answer to the above point is in 'Negative' for the
following:
REASONS
12. It is the specific contention of the complainant that
the accused has borrowed loan by executing loan-cum-
hypothecation agreement as per Ex-P10. As per this
agreement, loan of Rs.5,47,816/- was granted in favour of the
accused. This document is not in dispute. The officer and GPA
holder of the complainant company examined himself as PW-1.
During cross examination, the witness categorically admits
receipt of Rs.87,000/- after obtaining the loan by the accused.
He further states that the amount of Rs.1,81,484/- shown as
future principal in Ex-P11 is already paid by the accused. The
witness further states that the bus in question, which was
hypothecated in favour of the complainant was surrendered by
the accused and later, it was sold for Rs.2,40,000/- at the
instance of the accused himself. When these admissions on the
part of PW-1 is taken into consideration, there is absolutely no
justification for the complainant to show the amount of
Rs.1,81,484/- as due, towards future principle in Ex-P11.
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13. According to PW-1, they have not seized the vehicle
in question nor sold it by incurring any expenses. All the efforts
were made by the accused herself in selling the same. In spite
of that, a sum of Rs.84,309/- is shown as expenses and it is
the contention of the learned counsel for the appellant that, it
is towards seizure and sale of the vehicle. Therefore, this
amount cannot be the amount due from the accused. The other
amount of Rs.75,628/- towards OOC, even learned counsel for
the appellant was not in a position to say as to what is this
amount and what is meant by OOC. Under such circumstances,
the complainant is not justified in claiming Rs.1,81,484/-,
Rs.84,309, and Rs.75,628/- totaling to Rs. 3,41,421/-. If this
amount is to be deducted from the total amount said to be due,
i.e., Rs.3,16,961/-, a sum of Rs. -24,460/- will be in excess to
be repaid to the accused. But according to the complainant, an
amount of Rs. 3,16,961/- was due, which has no justification.
Under such circumstances, it is to be held that the complainant
has not probabalized the amount of the cheque as legally
recoverable debt.
14. When the accused has rebutted the presumption by
placing cogent material and also by cross examining PW-1 to
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demonstrate that the amount mentioned in the cheque was not
the amount that was legally recoverable debt as on the date of
issuance of cheque, and when the complainant has not placed
any materials in support of his contention, the accused is
entitled for acquittal.
15. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration the oral and documentary evidence placed before
it and has arrived at the right conclusion. I do not find any
illegality or perversity in the judgment impugned. Hence, I am
of the opinion that no grounds are made out to entertain the
appeal.
16. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
SPV
