Karnataka High Court
Shri Balakrishna S/O Gurunath ... vs M/S Shriram Transport Finance Company ... on 5 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:2492
CRL.RP No. 100299 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100299 OF 2022 (397)
BETWEEN:
SHRI BALAKRISHNA
S/O. GURUNATH SHAMBHUCHE,
AGED: 45 YEARS, OCC. SERVICE/BUSINESS,
R/O. H.NO. 4157, KANGRAL GALLI,
BELAGAVI, TQ. AND DIST. BELAGAVI-590001.
...PETITIONER
(BY SRI SHIVRAJ S. BALLOLI, ADVOCATE)
AND:
M/S. SHRIRAM TRANSPORT FINANCE COMPANY LTD.,
BRANCH OFFICE AT. 2ND FLOOR,
DHAMNEKAR MANSION, ABOVE JAGAJAMPI, MOTORS,
OPPOSITE CIVIL HOSPITAL,
DR. B.R. AMBEDKAR ROAD,
BELAGAVI-590001.
...RESPONDENT
Digitally (BY SRI SHREEVATSA HEGDE, ADVOCATE)
signed by
SUJATA THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
SUBHASH
PAMMAR 401 OF CR.P.C., SEEKING TO SET ASIDE THE ORDER OF
Date: CONVICTION DATED 14.03.2022 PASSED IN CRIMINAL APPEAL
2024.02.14 NO.531/2019 ON THE FILE OF THE XI ADDL. SESSIONS JUDGE,
13:17:16 BELAGAVI THEREBY CONFIRMING THE ORDER OF CONVICTION
+0530
DATED 25.11.2019 PASSED IN C.C.NO.985/2017 ON THE FILE OF
THE VII-JMFC, BELAGAVI, FOR THE OFFENCE PUNISHABLE
U/SEC.138 OF THE NI ACT BY ALLOWING THE TOP NOTED
REVISION PETITION AND CONSEQUENTLY ACQUIT THE
PETITIONER/ACCUSED OF THE ALLEGED OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT IN
C.C. NO. 985/2017 ON THE FILE OF THE VII-JMFC, BELAGAVI.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:2492
CRL.RP No. 100299 of 2022
ORDER
This revision petition under Section 397 read with
Section 401 of Cr.P.C. is filed with a prayer to set aside
the Judgment and order of conviction and sentence passed
by the Court of VII JMFC, Belagavi in Criminal Case
No.985/2017 dated 25.11.2019 and the Judgment and
order dated 14.03.2022 passed in Criminal Appeal
No.531/2019 by the Court of XI Additional Sessions Judge,
Belagavi.
2. Heard the learned counsel for the parties.
3. The respondent herein had initiated proceedings
against the petitioner before the Trial Court for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short, the NI Act'). It is the
specific case of the respondent/complainant that the
petitioner/accused had availed financial assistance from
the complainant-company for the purpose of purchasing
the vehicle bearing registration No.KA-26/B-8789 and he
also had executed a Hypothecation Agreement in favour of
the complainant. As per the complainant, it had advanced
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a loan of Rs.4,50,000/- to the petitioner for the purpose of
purchasing the said vehicle. The petitioner allegedly had
not paid the monthly loan installments and therefore his
loan account was overdue. The complainant had taken
steps for taking possession of the vehicle and it is at this
stage, towards full and final settlement of the loan dues,
the cheque in question was issued by the petitioner in
favour of the respondent/company for a sum of
Rs.10,00,000/-, dated 15.07.2013, drawn on Federal
Bank, Basavana Galli branch, Belagavi. The said cheque on
presentation for realization by the complainant was
dishonoured by the drawee Bank with banker shara 'Funds
Insufficient'. The complainant thereafter got issued a legal
notice dated 03.08.2013 to the petitioner as per the
requirements of the provisions of the N.I. Act and since
the petitioner had failed to pay the amount covered under
the cheque. The complainant had initiated proceedings
against the petitioner for the offence punishable under
Section 138 of the N.I. Act.
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4. In the said proceedings, the petitioner after
entering appearance before the Trial Court has pleaded
not guilty. The complainant in support of its case
examined one witness as P.W.1 and got marked 10
documents as Ex.P.1 to Ex.P.10. Petitioner had not led any
evidence in support of his defence nor had he produced
any documents before the Trial Court. The Trial Court after
hearing arguments addressed on both sides by the
impugned Judgment and order dated 25.11.2019 passed
in Criminal Case No.985/2017 convicted the petitioner for
the offence punishable under Section 138 of the N.I. Act
and sentenced him to pay fine of Rs.10,15,000/- and in
default to undergo simple imprisonment for a period of six
months. The said Judgment and order of conviction and
sentence passed by the Trial Court was confirmed in
Criminal Appeal No.531/2019 vide Judgment and order
dated 14.03.2022 by the Court of XI Additional Sessions
Judge, Belagavi. It is under the circumstances, the
petitioner is before this Court.
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5. The learned counsel for the petitioner submits that
as on the date of issuing the cheque, the petitioner was
not liable to pay the amount covered under the cheque in
question to the respondent and therefore, his prosecution
for the offence punishable under Section 138 of N.I. Act is
bad in law. In support of his arguments, he has placed
reliance on the Judgment of the Hon'ble Supreme Court in
the case of Dashrathbhai Trikambhai Patel vs. Hitesh
Mahendrabhai Patel and Another, reported in 2022
LiveLaw (SC) 830.
6. Per Contra, the learned counsel appearing for the
respondent/accused submits that cheque in question was
issued towards full and final settlement of the loan
account. Undisputedly, the vehicle which was purchased
by the petitioner by availing loan from the
respondent/company has not been surrendered. The
transaction between the petitioner and the respondent is
not denied and the same is also proved by necessary
documentary evidence. He accordingly prays to dismiss
the petition.
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7. The only point that arises for consideration in the
present case is that whether the cheque in question was
issued by the petitioner towards discharge of his legally
recoverable debt. It is not in dispute that the petitioner
had availed financial assistance from the
respondent/complainant and had purchased a vehicle. For
the said purpose, he had availed a loan of Rs.4,50,000/-
from the respondent company. The loan account extract of
the petitioner which is available at Ex.P.10 would go to
show that he had agreed to pay the loan amount with
interest to the respondent in 48 equal installments. As on
the date of issuing the cheque in question only 32
installments out of agreed 48 installments were
completed. Therefore, the petitioner was further due to
pay certain installments to the complainant.
8. It is the specific case of the complainant that
towards full and final settlement of the entire loan account
the cheque in question was issued. It is not in dispute that
the vehicle which was purchased by the petitioner by
availing the financial assistance from the respondent
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company was not surrendered to the company and
possession of the same had remained with the petitioner.
Therefore, the petitioner was liable to pay the entire loan
dues to the respondent company. Under the
circumstances, it cannot be said that as on the date of
issuing the cheque, the loan account extract Ex.P.-10
would reflect that the due amount was only Rs.9,28,244/-
and the petitioner cannot be prosecuted for the offence
punishable under Section 138 of the N.I. Act, since the
amount covered under the cheque in question is
Rs.10,00,000/-. A perusal of the loan account would go to
show that the petitioner was a chronic defaulter and he
had not paid even a single installment to the respondent
company. It is not the case of petitioner that after the
cheque in question was issued by him he had paid a
portion of the loan outstanding amount in his loan account
to the respondent/company. Therefore, there is no
material change in the circumstances such that the sum in
the cheque does not represent a legally enforceable debt.
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9. In the case of Dashrathbhai's (supra), part
payment of debt was made after the cheque was drawn,
but before the cheque was encashed and such payment
was not endorsed on the cheque and it is under the said
circumstances, the Hon'ble Supreme Court has observed
that the offence punishable under Section 138 of the N.I.
Act would not be attracted since the cheque does not
represent a legally enforceable debt at the time of
encashment, but the same is not position in the present
case. Under the circumstances, the Judgment in the case
of Dashrathbhai's (supra) cannot be made applicable to
the facts and circumstances of the case
10. In the case on hand issuance of cheque is not in
dispute. The signature found on the cheque is also not in
dispute. The transaction between the petitioner and the
respondent is proved by respondent by producing
necessary documentary evidence. The loan account
extract at Ex.P.10 would clearly go to show that the total
amount that was liable to be paid by the petitioner in 48
equal installments is much more than Rs.10,00,000/-. It is
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the specific case of the respondent that towards full and
final settlement of the entire loan amount dues, the
petitioner had issued the cheque in question for a sum of
Rs.10,00,000/-. Under the circumstances, the only
contention raised by the petitioner in the present revision
petition is liable to be rejected. Even otherwise I do not
find any other illegality or irregularity in the impugned
Judgment and order of conviction and sentence passed by
the Courts below. Under the circumstances, I do not find
any good ground to interfere with the well reasoned
Judgment and order of conviction and sentence passed by
the Courts below. Accordingly, this revision petition is
dismissed.
Sd/-
JUDGE
CKK
