Karnataka High Court
Shri. Sanjay Laxman Ghante vs M/S Shriram Transport Finance Co. Ltd on 14 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
-1-
NC: 2025:KHC-K:1077
CRL.RP No. 200016 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO.200016 OF 2020
BETWEEN:
SHRI. SANJAY LAXMAN GHANTE
AGE: 36 YEARS, OCC: TRANSPORT BUSINESS,
R/O. H.NO.10, SAMARTH NAGAR,
MAJAREWADI, TAL. NORTH SOLAPUR,
DIST. SOLAPUR- 413001.
...PETITIONER
(BY SRI MAHANTESH PATIL, ADVOCATE)
AND:
M/S. SHRIRAM TRANSPORT FINANCE CO. LTD
REPRESENTED BY SAIDAPPA BIJJARGI,
FIELD EXECUTIVE LEGAL, GULBARGA BRANCH,
Digitally signed by
SHIVAKUMAR C/O. SHRIRAM TRANSPORT FINANCE CO. LTD.,
HIREMATH SHRADDHA RESIDENCY,
Location: HIGH
COURT OF OPP. DIVISIONAL FOREST OFFICE,
KARNATAKA NEAR COURT, STATION ROAD, KALBURGI-585102.
...RESPONDENT
(BY SRI CHAITANYAKUMAR C.M., ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYNG TO ALLOW THE PETITION AND THE JUDGMENT AND
ORDER IN CRIMINAL CASE NO.1385 OF 2011 PASSED BY IV
ADDL. CIVIL JUDGE AND JMFC, KALABURAGI (SHRI
SUBHASCHCHANDRA RATHOD) AND CONFIRMING THE
JUDGMENT AND ORDER IN DATED 02.12.2019 CRIMINAL
APPEAL NO.34/2017 PASSED BY III ADDL. DISTRICT AND
-2-
NC: 2025:KHC-K:1077
CRL.RP No. 200016 of 2020
SESSIONS JUDGE, KALABURAGI, HOLDING THE PETITIONER
GUILTY FOR THE OFFENCE PUNISHABLE UNDER SECTION.138
OF NEGOTIABLE INSTRUMENTS ACT MAY KINDLY BE SET
ASIDE AND QUASHED AND THE PETITIONER MAY KINDLY BE
ACQUITTED FROM THE SAID CHARGE; NECESSARY ORDER
MAY PLEASE BE ISSUED AGAINST THE RESPONDENT COMPANY
FOR MISUSE OF BANKING RULES AND REGULATIONS AND
HARASSMENT TO THE PETITIONER AND FOR MAKING A
FRAUDULENT DOCUMENTATION AND FOR FILING A FALSE
CASE.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
1. The petitioner is before this Court under Section 397 read
with Section 401 of Cr.P.C. assailing the order of conviction and
sentence dated 06.06.2017 passed by the Court of IV
Additional Civil Judge and JMFC, Kalaburagi for the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short 'N.I.Act') and the judgment and order of
sentence passed by the Court III Additional District and
Sessions Judge, Kalaburagi in Criminal Appeal Nol.34/2017 vide
judgment and order dated 02.12.2019.
2. Heard learned counsel for the parties.
NC: 2025:KHC-K:1077
3. Learned Counsel for the petitioner submits that the
Courts below have failed to appreciate that the petitioner is not
liable to pay the amount covered under the cheque in question.
Even if the allegations found in the complaint are presumed to
be true, the loan cum hypothecation agreement was executed
on 22.11.2008 and as per the said agreement, the first 38
monthly installment was at the rate of Rs.21,500/- and the first
installment commences from 25.12.2008. The cheque in
question is dated 23.03.2009. As on the said date, only four
installments were due to be paid by the petitioner and
therefore, the amount covered under the cheque in question
cannot be said to be legally recoverable debt by the
respondent. The Courts below have failed to appreciate this
aspect of the matter and have erred in convicting the petitioner
for the alleged offence. Accordingly, he prays to allow the
petition.
4. Per contra, learned counsel appearing for the respondent
has argued in support of the impugned judgment and order of
sentence and submits that the Courts below have concurrently
held against the petitioner based on the oral and documentary
evidence placed on record. He submits that there was a
NC: 2025:KHC-K:1077
settlement and towards full and final payment, the cheque in
question was issued. Accordingly, he prays to dismiss the
petition.
5. In the legal notice issued in compliance of Section 138(b)
of the N.I.Act as well as in the private complaint filed by the
respondent, it is specifically stated that the petitioner herein
had availed finance for the purpose of purchase of TATA heavy
goods vehicle bearing registration No.MH-13/3237 and a loan
cum hypothecation agreement was executed and towards
repayment of installments, the cheque in question was issued
by the petitioner to the respondent. Ex.P-9 is the loan-cum-
hypothecation agreement which is referred to in the legal notice
as well as the private complaint filed by the respondent and the
said document is dated 22.11.2008. In the schedule to the said
document, it is mentioned that the loan borrowed is required to
be paid in 48 installments and the first 38 installment is of
Rs.21,500/- each. It is also stated that the first installment has
to be paid on 25.12.2008 and each subsequent payment of
installment should be paid on or before 25th of each succeeding
calendar month.
NC: 2025:KHC-K:1077
6. If that is so, as on the date of issuance of the cheque i.e.,
in the month of March 2009, at best, the petitioner would be
liable to pay four monthly installments at the rate of
Rs.21,500/- each. However, the cheque in question is for a sum
of Rs.3,00,000/-.
7. Learned Counsel for the respondent has failed to explain
as to why the cheque for a sum of Rs.3,00,000/- was issued
when the liability to pay as per the terms of Ex.P-9 is only four
monthly installments at the rate of Rs.21,500/- each.
8. In the pleadings or during the course of deposition, the
contentions now put forward by the learned Counsel for the
respondent that towards full and final settlement of amount
borrowed, the cheque in question was issued, has not been
stated and it is for the first time that such a contention is being
put forward before this Court.
9. Before the Trial Court, it has been consistently stated that
the cheque in question was issued towards discharge of liability
of the installments due. Since the respondent has failed to
point out to this Court that as on the date of issuance of
cheque, the petitioner was liable to pay an amount of
NC: 2025:KHC-K:1077
Rs.3,00,000/- to the respondent, and towards discharge of the
said amount, the cheque in question was issued, I am of the
opinion that the petitioner cannot be held guilty for the offence
punishable under Section 138 of the N.I.Act. The courts below
have failed to appreciate this aspect of the matter and have
erred in convicting the petitioner for the alleged offences.
10. It is trite that if only the complainant proves that the
cheque in question was issued towards discharge of legally
recoverable debt from the accused, then the accused is liable to
be held guilty for the offence punishable under Section 138 of
the N.I.Act.
11. The loan account extract of the petitioner is available at
Ex.P-8. Perusal of the said document would also go to show
that as on the date of issuance of cheque, the petitioner was
not liable to pay the amount covered under the cheque to the
respondent. Under the circumstances, I am of the opinion that
the impugned judgment and order of conviction and sentence
passed by the courts below cannot be sustained. Accordingly,
the following order:
NC: 2025:KHC-K:1077
12. The revision petition is allowed. The 06.06.2017 passed
by the Court of IV Additional Civil Judge and JMFC, Kalaburagi
for the offence punishable under Section 138 of the N.I.Act and
the judgment and order of sentence passed by the Court III
Additional District and Sessions Judge, Kalaburagi in Criminal
Appeal Nol.34/2017 vide judgment and order dated
02.12.2019, are set aside. The petitioner is acquitted of the
offence punishable under Section 138 of the N.I.Act. The
amount in deposit is ordered to refunded to the petitioner.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SRT/KK
CT-PK
