Karnataka High Court
Shriram Transport Finance Co. Ltd vs Nirmal on 5 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 200234 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200234 OF 2023 (378)
BETWEEN:
SHRIRAM TRANSPORT FINANCE CO. LTD.,
BY ITS AUTHORIZED SIGNATORY,
G.PANDURANGA S/O G. CHANDRAKANT,
AGE: 50 YEARS,
OCC: PRODUCT EXECUTIVE LEGAL (NOW ABM),
R/O 1ST FLOOR, GURU KRUPA, NEAR N.C.C. OFFICE,
SOLAPUR ROAD, VIJAYAPURA-586101.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
Digitally signed by SMT. NIRMAL W/O ANIL KALADAGI,
SHILPA R
TENIHALLI AGE: MAJOR, OCC: PRIVATE WORK/BUSINESS,
Location: HIGH R/O W.NO.14, SUNGAR GALLI,
COURT OF NEAR MAHADEV TEMPLE,
KARNATAKA
SHAHAPETI, VIJAYAPURA-586101.
...RESPONDENT
(RESPONDENT SERVED)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING TO
ADMIT THIS APPEAL AND CALL FOR THE RECORDS FROM THE
TRIAL COURT AND FURTHER. ALLOW THIS APPEAL AND THEREBY
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
01.07.2023 PASSED IN CRIMINAL CASE NO.1983/2013 BY THE V
ADDITIONAL CIVIL JUDGE AND JMFC AT VIJAYAPURA AND
FURTHER CONVICT THE RESPONDENT / ACCUSED FOR THE
OFFENCE UNDER SECTION 138 OF THE NI ACT, AND AWARD
DOUBLE THE CHEQUE AMOUNT TO APPELLANT BY WAY OF
COMPENSATION.
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NC: 2024:KHC-K:1333
CRL.A No. 200234 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed by appellant under Section 378(4)
of Cr.P.C. challenging the judgment of acquittal passed by
V Additional Civil Judge & JMFC, Vijayapura, in
CC.No.1983/2013, dated 01.07.2023 whereby the learned
Magistrate has acquitted the accused for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'N.I. Act').
2. For the sake of convenience parties herein are
referred with the original ranks occupied by them before
the trial Court.
3. The brief factual matrix leading to the case are as
under:
Complainant-Shriram Transport Finance Company
Ltd., is a financial Institution and accused has availed the
loan for purchasing Tata HGV Multi Axle in 2007 and
purchased vehicle bearing registration No. KA-28 A-6104.
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It is alleged that the loan was sanctioned in 30.04.2009
and accused has executed hypothecation as well as loan
agreement. It is alleged that accused was required to
repay the loan as per the agreement and he had issued a
cheque dated 22.12.2012 for a sum of Rs.3,00,000/- and
when the said cheque was submitted for encashment, it
was dishonoured for insufficiency of funds. The legal notice
came to be issued by the complainant and in spite of
service of legal notice, accused has neither paid the
cheque amount nor replied. Hence, a complaint came to
be lodged for the offence punishable under Section 138 of
the N.I. Act.
4. On the basis of the complaint, the learned
Magistrate has taken cognizance of the offence and issued
process. Accused appeared through his counsel and he
was enlarged on bail. The plea under Section 138 of the
N.I. Act was recorded and accused denied the same. The
authorized officer of complainant was examined as PW1
and he placed reliance on Ex.P1 to Ex.P10. After
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completion of the evidence of complainant, the statement
of accused under Section 313 Cr.P.C. is recorded and case
of accused is of total denial.
5. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has acquitted the accused for the
offence punishable under Section 138 of the N.I. Act by
exercising his powers under Section 255(1) of Cr.P.C.
6. Being aggrieved by this judgment of acquittal,
the complainant is before this Court by way of this appeal.
7. Heard the arguments advanced by the learned
counsel for appellant. Perused the records. The respondent
though served, is unrepresented.
8. The main contention of the complainant is that
accused has availed a loan and towards discharge of this
loan, the disputed cheque under Ex.P1 came to be issued.
At the outset, in the entire complaint, complainant has
nowhere asserted that what is the amount advanced to
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the complainant and what is the due amount. The
complaint is completely silent in this regard. The
complainant has only relied on Ex.C9 statement of
account. First time in the statement of account it is
revealed that on 29.06.2010, loan was advanced to the
tune of Rs.7,00,000/-. But subsequent statements of
accounts were not produced and a simple statement of
account in one line from 05.08.2010 to 05.07.2014 is
produced.
9. It is an admitted fact that the vehicle was
subsequently seized by the complainant. It is further
admitted that in Ex.C9 which is the account statement
seizure of the vehicle was not referred there. It is further
asserted by PW1 that vehicle was sold in auction, but
there is no evidence produced by the complainant to show
that on which date the vehicle was seized, what was the
condition of the vehicle, whether inventory was done at
the time of seizure and when the auction was held. It is
further evident that there is no evidence as to valuation of
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the vehicle and when the auction was held. Further, there
is no evidence as to whether the notice of auction was
given to the accused, what is the date of auction, when
and where it was published and who are the highest as
well as lowest bidders. The entire evidence is completely
silent in this regard. In Ex.C9, only some amount was
credited asserting that it is an auction amount. But no
opportunity was given to the accused to secure better
bidders by issuing notice and reporting him in a writing the
date of auction. It is contended that orally the accused
was intimated, but since the complainant is a financial
institution, it is required to intimate the matter in a
writing, but no such evidence is forthcoming.
10. Apart from that, who were the bidders and
when the auction has taken place and for how much
amount the vehicle was sold is not at all forthcoming. No
documents pertaining to auction were produced by the
complainant. In the cross-examination, it is asserted that
the accused has deposited Rs.51,000/- and since
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subsequent payment was not made, the vehicle was
seized. He admits that vehicle was seized in 2012 and the
vehicle was auctioned in June-2012. There is no evidence
as to date of auction, issuance of public notice of auction
etc., as referred above. Hence, the complainant being a
financial-Institution is required to maintain proper
documentation and simply in Ex.C9, a figure was entered
towards auction amount and that cannot be accepted in
the absence of any material evidence.
11. The complainant has not established that the
due as on the date of issuance of cheque was of
Rs.3,00,000/- or more and it is legally enforceable debt.
Even the vehicle was not valued by competent certified
valuator before auctioning and all these facts and
circumstances clearly establish that some officials of
complainant have high handedly seized the vehicle and
auctioned it without there being any proper documents
and thereafter, disposed of the same as per their whims
and fancies. In the absence of any other material as to
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date of auction, participants, lowest and highest bidder
and valuation of the vehicle, Ex.C10 cannot be accepted
that the auction was held in accordance with law by
following all procedure and value of the vehicle was
Rs.6,70,000/-. Considering all these facts and
circumstances, it is evident that complainant has not
approached the Court with clean hands and failed to
substantiate the contention that the accused was due to
the tune of Rs.3,00,000/- in spite of receipt of proceeds of
auction of vehicle as asserted and the said amount is a
legally enforceable debt. Hence, though the signature on
the cheque is admitted to that of the accused, considering
the transactions, it is evident that the accused has
rebutted the presumption available in favour of
complainant under Section 139 of the N.I. Act. The
complainant has failed to establish the proper transaction
and proper maintenance of account and hence, it is failed
to prove that the cheque amount is a legally enforceable
liability.
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12. The learned Magistrate has considered all these
aspects in proper perspective and has rightly acquitted the
accused. No illegality or infirmity is found in the judgment
of acquittal. No grounds are made out for admitting the
appeal. Hence, the appeal being devoid of any merits,
does not survive for consideration and accordingly, I
proceed to pass the following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
DS
