Karnataka High Court
M/S. Shriram Transport Finance Co.Ltd vs Ronald Miranda on 30 May, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 768 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 768 OF 2014
BETWEEN:
M/S. SHRIRAM TRANSPORT FINANCE CO.LTD
CENTRAL OFFICE: No.123
A.N.STREET, CHENNAI
WITH ITS DIVISIONAL AND BRANCH OFFICE
AT VIJAYASHREE ARCADE
OPP. PADAVU HIGH SCHOOL NANTHOOR
MANGALORE - 575 007.
REPRESENTED BY ITS SENIOR EXECUTIVE (LEGAL)
M.C.NAGABHUSHAN
S/O CHIKKARANGAIAH
Digitally signed by AGED ABOUT 38 YEARS
LAKSHMINARAYANA
MURTHY RAJASHRI ...APPELLANT
Location: HIGH
COURT OF
KARNATAKA (BY SRI. M J ALVA, ADVOCATE)
AND:
RONALD MIRANDA
S/O VELERIAN MIRANDA
MAJOR
No.445-2, WARD No.30
PADAUV, DANDAKERI HOUSE
KONCHADI POST
MANGALORE, D.K -575 008.
...RESPONDENT
(BY SMT. ASHRITHA SHETTY, ADVOCATE FOR
SRI P N HEGDE, ADVOCATE)
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CRL.A No. 768 of 2014
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGEMENT OF ACQUITTAL DATED
30.6.2014 PASSED BY THE LEARNED JMFC (V COURT),
MANGALORE IN C.C.NO.1173/2008 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
THIS APPEAL COMING ON FOR ARGUMENTS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed praying to set aside the
judgment of acquittal dated 30.06.2014 passed by JMFC
(V Court) Mangaluru, in C.C. No. 1173/2008. The
respondent - accused has been acquitted by the impugned
judgment for offence under Section 138 of the Negotiable
Instruments Act, (hereinafter for the sake of brevity
referred to as the `N.I. Act').
2. Heard the learned counsel for the appellant
and learned counsel for the respondent.
3. Brief facts of the complainant/appellant's case
is, that it is a Public Limited Company engaged in the
business of finance for commercial purpose. Respondent -
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accused had availed loan of Rs.5,95,000/- and executed
loan-cum-hypothecation agreement dated 10.03.2005 and
the tenure of the loan was 48 months agreeing to pay
interest amount of Rs.3,73,184/-. Total agreed value to be
paid by the respondent to the appellant was
Rs.10,18,184/-.
4. The respondent purchased a lorry bearing
registration No. KA-09-B-8080. The respondent, for
repayment of the said loan amount, had issued a cheque
(Ex.P.1) for a sum of Rs.8,70,000/- dated 09.10.2007
drawn on Indian Overseas Bank, Padauv branch,
Mangaluru. Said cheque came to be dishonoured for
insufficiency of funds and for stoppage of payment. The
appellant's banker intimated dishonour of the cheque to
the appellant on 17.10.2007. The appellant got issued
notice to the respondent on 15.11.2007 and it came to be
served on the respondent on 17.11.2007. Inspite of
service of demand notice, the respondent failed to pay the
cheque amount and therefore, the appellant initiated
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proceedings for offence under Section 138 of the N.I. Act.
Learned Magistrate took cognizance for offence under
Section 138 of the N.I. Act. The respondent - accused had
challenged the order of cognizance in Crl. Rev. Petition No.
281/2009 before the IV Additional District and Sessions
Judge, Mangaluru and the same came to be dismissed.
Thereafter, complaint's representative came to be
examined as P.W.1 and got marked Ex.P.1 to Ex.P.10. The
respondent - accused did not examine himself and not
examined any witnesses on his behalf. Learned Magistrate,
appreciating the evidence on record, had acquitted the
respondent - accused for offence under Section 138 of the
N.I. Act by the impugned judgment. Said judgment has
been challenged in this appeal.
5. Learned counsel for appellant would contend
that the learned Magistrate has acquitted the respondent -
accused on the ground that the demand notice has not
been issued within 30 days from the date of receipt of
dishonour intimation from the Bank. He contends that the
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intimation of dishonour has been received from the
banker, namely, Corporation bank by way of memo
(Ex.P.3) along with the memo of Indian Overseas Bank
(Ex.P.2) on 17.10.2007 and notice has been issued with
30 days, i.e., on 15.11.2007. He contends that the learned
Magistrate erroneously gave finding that the date of Ex.P.3
is 11.10.2007 and there is alteration in the date of the
said return memo - Ex.P.3. He further contends that the
order of cognizance has been challenged by the
respondent - accused on the very same ground and the
revisional Court after hearing both the parties held that
intimation of dishonour was received by the appellant on
17.10.2007 and from the said date within 30 days the
demand notice has been issued. He contends that the
documents produced, namely, Ex.P.4 and Ex.P.7 loan-
cum-hypothecation agreement and Ex.P.8 - statement of
account will establish legally enforceable debt. He
contends that there is no dispute with regard to issuance
of cheque by the respondent - accused as per Ex.P.1 and
therefore, a presumption under Section 138 of the N.I. Act
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has to be drawn. Said presumption has not been rebutted
by the respondent - accused. Therefore, the impugned
judgment of acquittal passed by the learned Magistrate is
erroneous and it requires to be set aside and the
respondent is liable to be convicted for offence under
Section 138 of the N.I. Act. With this, he prayed to allow
the appeal.
6. Learned counsel for respondent would contend
that the respondent had availed a loan from M/s. Sriram
Investments and present complaint has been filed by M/s.
Sriram Transport Finance Company Limited and no
documents are produced to show amalgamation of M/s.
Sriram Investments with M/s. Sriram Transport Finance
Company Limited. She contends that P.W.1 has admitted
in his cross-examination that dishonour intimation was
received on 11.07.2007 and therefore, notice issued on
15.11.2007 is not within 30 days from the date of receipt
of dishonour intimation and considering the same, learned
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Magistrate has rightly acquitted the respondent - accused.
With this she prayed to dismiss the appeal.
7. Having heard the learned counsel for the
parties the Court has perused the records and the
impugned judgment.
8. It is not in dispute that the respondent had
availed loan for purchase of a lorry from M/s. Sriram
Investments and executed a loan-cum-hypothecation
agreement dated 10.03.2005 as per Ex.P.7. The
respondent - accused has admitted the signature on the
cheque (Ex.P.1) and contended that it was given as a
security at the time of executing the agreement (Ex.P.7).
Nothing has been elicited in the cross-examination of
P.W.1 to establish that Ex.P.1 has been given as security
at the time of executing the loan agreement.
9. Even though there is cross-examination of
P.W.1 with regard to amalgamation of M/s. Sriram
Investments with M/s. Sriram Transport Finance Company
Limited, there is no denial of the fact regarding
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amalgamation of M/s. Sriram Investments with M/s.
Sriram Transport Finance Company Limited. Ex.P.8 is the
financial details of the account of the respondent -
accused which indicate that a sum of Rs.8,79,838/- was
due as on 06.06.2007. Ex.P.1 - cheque has been issued
for a sum of Rs.8,70,000/- in favour of the appellant for
repayment of the amount due by the respondent -
accused to the appellant - company. Ex.P.7 and Ex.P.8 will
establish that there is legally enforceable debt and for
payment of the same Ex.P.1 - cheque has been issued.
Therefore, a presumption under Section 138 of the N.I.
Act has to be drawn. To rebut the said presumption,
except cross-examination of P.W.1, the respondent -
accused has not examined himself or any witnesses on his
behalf. There is no material elicited in the cross-
examination of P.W.1 to rebut the said presumption.
10. Ex.P.1 - cheque has been drawn on Indian
Overseal Bank, Mangaluru. Said Ex.P.1 - cheque was
presented by the appellant to his banker, i.e., Corporation
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Bank, Mangaluru. Ex.P.1 - cheque was dishonoured and
the Indian Overseas Bank issued a return memo dated
11.10.2007 which is at Ex.P.2. In turn, the Corporation
Bank issued a memorandum dated 17.10.2007 as per
Ex.P.3. Learned Magistrate, without any evidence on
record, has erred in observing that date in Ex.P.3 has been
corrected from 11.10.2007 to 17.10.2007. The seal of
Corporation Bank which is put on Ex.P.3 contains the date
as 12.10.2007. If the seal contains the date as 12.10.2007
then there is no question of the said memorandum being
dated 11.10.2007. Therefore, the learned Magistrate erred
in giving a finding that Ex.P.3 is dated 11.10.2007 and
there is material alteration in the date of the said
document. In Ex.P.4 - demand notice there is a specific
mention in paragraph No.2 that the appellant received
intimation dated 17.10.2007 from its banker. The said
demand notice has not been replied by the respondent -
accused even though the notice has been served on him
on 17.11.2007 as per postal acknowledgment - Ex.P.6.
Considering all these aspects the appellant - complainant
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has made out all ingredients of offence under Section 138
of the N.I. Act. Therefore, the impugned judgment of
acquittal requires to be set aside and the respondent -
accused is liable to be convicted for offence under Section
138 of the N.I. Act.
11. In the result; the following;
ORDER
I. The appeal is allowed.
II. The impugned judgment of acquittal dated
30.06.2014 passed in C.C. No. 1173/2008 by the
JMFC (V Court) Mangaluru is hereby set aside.
III. The respondent - accused is convicted for
offence under Section 138 of the N.I. Act and he
is sentenced to pay fine of Rs.3,75,000/- and in
default of payment, to undergo simple
imprisonment for six months.
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IV. Out of the said fine amount, a sum of
Rs.3,70,000/- is ordered to be paid to the
appellant as compensation.
Sd/-
JUDGE
LRS
