Karnataka High Court
Shriram Transport Finance Co Ltd vs Smt Asamabi Shabhan on 9 September, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.1028 OF 2010
BETWEEN:
Shriram Transport Finance Co. Ltd.,
A public Ltd. Company,
Having its Regd. Office at
No.123, Angappan Naicker Street,
Chennai,
With its Branch Office at
1st Floor, Raj Towers, near City Bus Stand,
Udupi,
Represented by its Manager(Legal),
Mr. M.R.Madhusudhan,
S/o. R.K.Manavi,
Aged about 47 years.
.. APPELLANT
(By Sri M.J.Alva, Advocate)
AND:
Smt. Asamabi Shabhan
W/o A.H.Shabhan,
Major,
Jubeida Manzil,
Crl.A.No.1028/2010
2
T.T.Road, Kundapur,
Udupi District.
.. RESPONDENT
(By Sri R.B.Deshpande, Advocate)
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to set aside the impugned Judgment dated
24.05.2010 passed by the III Addl. Civil Judge, and JMFC,
Udupi in C.C.No.183 of 2008 acquitting the respondent for
the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Further
Arguments through Physical Hearing / Video Conferencing,
this day, the Court delivered the following:
JUDGMENT
This appeal is filed by the complainant in C.C. No. 183/2008 on the file of the III Addl. Civil Judge & JMFC, Udupi (for brevity, hereinafter referred to as 'the Trial Court'), wherein the learned Magistrate by Judgment dated 24.05.2010, acquitted the accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act').
Crl.A.No.1028/20103
2. The summary of the case of the complainant in the Trial Court is that the accused (respondent herein) had entered into an agreement with the complainant (appellant herein) in respect of a vehicle bearing Registration No. KA-20/A-5018 and towards the amount due in respect of the said loan amount, the accused on 16.08.2007 issued a cheque to the complainant for a sum of `7,90,000/- bearing No.805442 drawn on Karnataka Bank, Hangalur. The complainant presented the said cheque for encashment through its banker HDFC Bank. However, the said cheque came to be dishonoured with the banker's endorsement 'funds insufficient'. Thereafter the complainant got issued a legal notice to the accused demanding the payment of the cheque amount. In spite of the said notice, the accused failed to pay the dishonoured cheque amount. Hence, the complainant instituted a criminal case against her Crl.A.No.1028/2010 4 under Section 200 of the Criminal Procedure Code for the offence punishable under Section 138 of the N.I. Act.
3. In order to prove its case, the complainant
- company examined one of its authorized signatories Shri K. Vasudeva as PW-1 and got marked documents from Exs.P1 to P11. Neither any witness was examined nor any documents were marked from the accused side. After hearing arguments from both side, the Trial Court by its impugned Judgment dated 24.05.2010 acquitted the accused of the alleged offence. It is against the said Judgment, the complainant has preferred the present appeal.
4. Respondent is being represented by her counsel. Trial Court records were called for and the same are placed before this Court.
5. Heard arguments from both side. Perused the materials placed before this Court. Crl.A.No.1028/2010 5
6. The points that arise for my consideration are:
(i) Whether the complainant has proved beyond reasonable doubt that the accused has committed the alleged offence punishable under Section 138 of the N.I. Act?
(ii) Whether the Judgment of the Trial Court impugned under this appeal warrants any interference at the hands of this Court?
7. PW-1 in his evidence has reiterated the contentions taken up by the complainant in the complaint. In his support, he got marked the alleged dishonoured cheque said to have been issued by the accused at Ex.P1. The signature of the drawer of the instrument which is said to be of accused was marked Crl.A.No.1028/2010 6 as Ex.P1(a). The banker's memo issued while returning the dishonoured cheque were marked at Exs. P2 and P3 and copy of the legal notice said to have been sent by the complainant to the accused, its postal receipt, certificate of posting, the postal acknowledgement were marked as Exs.P4, P5, P6 and P7 respectively. The signature of the accused in Ex.P7 was marked at Ex.P7(a). General power of attorney said to have been given by the complainant company in favour of PW-1 was marked at Ex.P8. The loan agreement said to have been executed by the accused in favour of the complainant was marked at Ex.P9 and P10. Statement of accounts said to be pertaining to the accused and maintained by the complainant was marked at Ex.P11.
8. PW-1 was subjected to a detailed cross- examination from the accused side wherein for several of the questions of the accused regarding, the alleged Crl.A.No.1028/2010 7 statement of accounts at Ex.P11 does not show any details as to whom the alleged seized vehicle was sold, the details of the rebate, the details of the premiums towards the insurance and the details of the repayment made have not been given clearly, was admitted as true by the witness. However, PW-1 in his cross-examination elaborated the loan transaction by stating that the accused prior to availing loan facility from the complainant had already availed a loan of a sum of `9,95,000/- from the UTI Bank and the complainant herein was the surety for the said loan. It is after the surety cleared the said loan liability towards UTI Bank, a fresh agreement was entered into between the complainant and the accused whereunder accused has acknowledged a loan of `10,69,500/- from the complainant. The said evidence of PW-1 has not been denied or disputed from the accused side. On the other hand, through Crl.A.No.1028/2010 8 several other suggestions, the accused herself has admitted that there existed a loan transaction between herself and the complainant where she (accused) was the borrower.
9. Learned counsel for the respondent / accused in his arguments also fairly submitted that he would not dispute the alleged loan transaction with the complainant company. However, he only disputes the existence of any legally enforceable debt as on the date of presentation of the cheque at Ex.P1. From this, it remains as an undisputed fact that by virtue of the loan agreement as per Exs.P9 and P10, the accused had availed financial facility from the complainant -establishment which had taken over or cleared the loan liability of the accused with the UTI Bank.
10. Regarding the issuance of cheque at Ex.P1, the accused has not specifically denied or disputed the Crl.A.No.1028/2010 9 same. On the other hand, in the cross-examination of PW-1, the accused had made suggestion at more than one place to the effect that the cheque issued by the accused to the complainant was not as a repayment of the alleged existing loan. Accused also suggested to the witness that a blank cheque obtained from the accused in the beginning of the transaction was misused by the complainant in the form of present case.
Though the witness has not admitted those suggestions as true, but by making those suggestions and by not denying the evidence of PW-1 that cheque at Ex.P1 was executed and issued by the accused to the complainant - establishment, the accused has shown that the cheque at Ex.P1 was issued by her to the complainant. Thus the issuance of the cheque at Ex.P1 stands proved.
Crl.A.No.1028/201010
11. It is in the light of the above evidence, learned counsel for the appellant vehemently submitted that when the issuance of cheque has stood proved without any dispute with regard to the same, the presumption operates in favour of the complainant which presumption has not been rebutted by the accused who has neither replied to the notice at the earliest point of time nor entered witness box and led evidence from her side not even produced any documents. Therefore the Trial Court was at error in acquitting the accused from the alleged offence.
12. Per contra, learned counsel for the respondent in his arguments vehemently submitted that merely because the issuance of cheque at Ex.P1 is not denied, by that itself, it cannot be presumed that as on the date of presentation of the cheque, there existed a legally enforceable debt. He further Crl.A.No.1028/2010 11 submitted that the accused has successfully rebutted the presumption formed in favour of the complainant, in the very cross-examination of PW-1, as such, there was no necessity for the accused to enter witness box. Since the complainant has failed to prove the existence of legally enforceable debt even though the cheque has been dishonoured for insufficiency of funds, the Trial Court has rightly acquitted the accused from the alleged offence.
13. From the above discussion it is established that cheque at Ex.P1 was issued by the accused to the complainant which got dishonoured for insufficiency of funds as per banker's endorsement at Exs.P2 and P3. The issuance of a legal notice and its service upon the accused is also not in dispute and they stand established through Exs.P4, P5, P6 and P7. However, the defence of the accused is, that as on the date of Crl.A.No.1028/2010 12 presentation of the cheque and its dishonour, there existed no legally enforceable debt. It is on the said point it has to be seen as to whether the accused has successfully rebutted the presumption that was operating in favour of the complainant by virtue of S.139 of N.I. Act?
14. In the cross-examination of PW-1 throughout, the accused at various places has elicited several replies of ignorance from the witness about the alleged liability of the accused towards the complainant. Certain discrepancies in the loan agreement itself at Exs.P9 and P10 were elicited in the cross-examination of PW-1 including that Ex.P10 is silent about who has paid the loan amount to whom and what was the alleged agreed rate of interest? It was also elicited in the cross-examination of PW-1 that the alleged premiums towards the insurance of Crl.A.No.1028/2010 13 the vehicle which was the subject matter of the loan transaction was paid by the accused. However from the accused side, it was also elicited from the very same witness in the cross-examination that the alleged statement of the loan account at Ex.P11 still shows a liability of `40,000/- as towards insurance deposit. No doubt, PW-1 attempted to patch up the said discrepancy by stating that a rebate has been given towards the said loan. However, the very same witness in the subsequent sentence has also stated the alleged rebate does not give the details as to towards which all acts and to what amount the rebate was given. This goes to show that though the alleged statement of accounts shows a rebate of `1,75,569/- but it does not specifically show as to how that amount was arrived at? It does not even mention whether the insurance premium of `40,000/- which according to PW-1 was paid by the accused herself Crl.A.No.1028/2010 14 was included in the said rebate. Therefore it goes to show that since the accused in Ex.P11 has shown a sum of `40,000/- as a liability towards the insurance amount in spite of the admitted fact that the said amount was paid by the accused, the very correctness and trustworthiness of the statement of accounts at Ex.P11 becomes doubtful.
15. Similarly the very same statement of accounts though gives a deduction of `1,57,434/- towards the receipt of monthly hire rentals but as was told by PW-1 in his cross-examination to a specific query by the accused, that the said statement does not give the complete details of how many instalments of what amount was received by the complainant from the accused. Therefore as rightly submitted by the learned counsel for the respondent, the correctness of Crl.A.No.1028/2010 15 the statement of accounts at Ex.P11 becomes more doubtful.
16. Added to the above, PW-1 in his cross- examination has also admitted as true that the alleged credit of a sum of `6,20,000/- shown in the account at Ex.P11 does not give the details as to the same including the item that was said to be sold. Therefore when merely it goes to show the same as sale proceeds, it cannot be imagined that it was pertaining to the sale of the alleged seized vehicle. Neither the contents of the complaint nor the evidence of PW-1 in his examination-in-chief throws any light in that regard.
17. Further, a sum of `13,740/- added towards the liability under the expenses head as "RTO Expenses", in the same statement of accounts at Ex.P11 also could not be explained by PW-1 in his cross-examination. He could not give any details as Crl.A.No.1028/2010 16 to how the specific figure was arrived at in the said statement of accounts. Thus the accused without even entering into witness box and without even examining any evidence from her side could be able to check the credibility of the evidence of PW-1 with respect to Ex.P11 and could be able to show that Ex.P11 cannot be accepted as a true account statement of the alleged outstanding loan. Since the very cheque amount which is at `7,90,000/- is said to have been issued on the basis of the alleged outstanding amount shown in Ex.P11 and in view of the fact that Ex.P11 itself is proved to be not safe to accept as a true account extract, then, it is highly doubtful as to the existence of the outstanding liability to an extent of `7,90,000/- (cheque amount) from the accused towards the complainant as on the date of the presentation of the cheque. Therefore the defence of the accused that there existed no legally Crl.A.No.1028/2010 17 enforceable debt equivalent to the cheque amount as on the date of presentation of the cheque gains more reasons to believe and accept, than believing the version of the complainant that the cheque amount was the outstanding liability from the accused.
18. Once the accused has successfully rebutted the presumption under S.139 of the N.I. Act, the onus shifts back to the complainant. However, the complainant failed to discharge its burden of proving the alleged liability from the accused, equivalent to the cheque amount. Considering the said fact, the Trial Court has rightly held that the complainant has failed to prove beyond reasonable doubt that the accused has committed the offence punishable under Section 138 of the N.I. Act. Since the said finding is based on the proper analysis of the materials placed in the matter by the Trial Court, leading to a correct Crl.A.No.1028/2010 18 finding, I do not find any reason to interfere in it. As such, I proceed to pass the following:
ORDER Appeal dismissed.
The Judgment passed in C.C. No.183/2008 by the learned III Addl. Civil Judge & JMFC, Udupi, dated 24.05.2010, acquitting the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 stands confirmed.
Registry to transmit copy of this Judgment along with Trial Court records to the Court below, forthwith.
Sd/-
JUDGE sac*