Punjab-Haryana High Court
M/S Mahindra Hire Purchase (Regd.) vs Biru Ram And Another on 10 February, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 2063-SBA of 2006
Date of Decision : February 10, 2010
M/s Mahindra Hire Purchase (Regd.)
...Appellant
Versus
Biru Ram and another
....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Vijay Lath, Advocate
Mr. Rajeev Anand, Advocate for respondent No.1.
Mr. P.S. Sidhu, Additional Advocate General, Punjab
for respondent No.2.
T.P.S. MANN, J. (Oral)
Biru Ram-respondent was tried by Judicial Magistrate Ist Class, Jalandhar, in a private criminal complaint instituted against him by the appellant under Section 138 of the Negotiable Instruments Act. Vide judgment and order dated 1.4.2003, the trial Court convicted the accused for the said offence and sentenced him to undergo imprisonment for a period of eleven months and to pay a fine of Rs.2000/-. In default of payment of fine, he was sentenced to undergo further imprisonment for a period of one month.
Aggrieved of his conviction and sentence, the accused filed an appeal, which was accepted by Sessions Judge, Jalandhar vide order dated 8.2.2005. The said order had been challenged by the complainant Crl Appeal No. 2063-SBA of 2006 -2- by filing an application under Section 378(4) Cr.P.C. for special leave to appeal, which was granted on 26.9.2006 and consequently the appeal was admitted.
According to the complainant, the accused purchased truck No. HP-38-2657 under Hire Purchase agreement with the complainant and offered to repay the loan amount in monthly installments. However, he did not adhere to the financial discipline as per the terms and conditions of Hire Purchase agreement dated 13.9.1996 and committed default in payment of monthly installments. In order to discharge his financial obligation, he issued cheque dated 17.5.1999 for an amount of Rs.1,10,000/- in favour of the complainant by assuring that the same would be encashed on its presentation in the bank. The cheque was, however, dishonoured by the banker of the accused with the remarks 'Not Arranged For'. The complainant, accordingly, served legal notice dated 17.6.1999 calling upon the accused to make payment of the amount of cheque in question within fifteen days from receipt thereof but despite due service the accused willfully failed and neglected to comply with the demand. Hence, he had no other option but to file the complainant in question.
After recording preliminary evidence, the trial Court summoned the accused for the commission of offence punishable under Section 138 of the Act. Subsequent to his appearance, notice of accusation was served upon him to which he pleaded not guilty and claimed trial.
Crl Appeal No. 2063-SBA of 2006 -3-
In support of its case, the complainant examined CW1 Lalit Sachdeva, CW2 Sudesh Kumar and CW3 Jasmeet Singh, partner of the complainant-firm.
In his statement recorded under Section 313 Cr.P.C., the accused denied all the allegations of the complainant and pleaded that he had been falsely implicated. However, he did not produce any defence evidence.
After hearing learned counsel for the parties and going through the evidence on the record, the trial Court held that the cheque in question had been issued by the accused in favour of the complainant in order to discharge his legal liability. Though the cheque was presented with the banker yet the same was returned unpaid. Even a legal notice was served upon the accused by the complainant for making the payment but despite service he failed to make payment of the amount of the cheque in question within the stipulated period. Therefore, the accused had committed an offence under Section 138 of the Act for which he was convicted and sentenced to imprisonment and fine, as mentioned above.
The lower appellate Court took notice of the fact that the vehicle belonging to the accused had been seized by the complainant but inspite of the same the value of the vehicle financed and repossessed had not been adjusted while making statement of accounts. Even no mention was made in the complaint that the complainant had seized the vehicle. Therefore, the cheque in question could not have been issued Crl Appeal No. 2063-SBA of 2006 -4- in discharge of the existing liability. Infact, the same was blank and given by the accused to the complainant when the vehicle was financed in 1996 and not issued on 17.5.1999 as claimed by the complainant. Moreover, as per statement of accounts Ex.CW3/4, a sum of Rs.6900/- had been added as travelling and conveyance expenses, Rs.1800/- for seizing the vehicle, Rs.600/- for postage expenses, Rs.9000/- for contingency and repair of the vehicle and Rs.32,686/- as interest upto May, 1999. Therefore, an amount of Rs.50,986/- stood added to the amount allegedly due from the accused. The interest had already been calculated @ 22% per annum on the amount of Rs.80,000/- and again an interest amounting to Rs.32,686/- had been added. It thus appeared that the interest was being charged @ 50% per annum, which was too exorbitant. In view of the same, the lower appellate Court came to the conclusion that as the complainant had misused the process of law to fleece the accused by filling up the blank cheque at his back, the conviction of the accused, as recorded by the trial Court, could not be sustained.
Learned counsel for the parties have been heard and the evidence thoroughly scanned with their able assistance.
Jasmeet Singh, partner of the complainant-firm, while appearing as CW3, clearly admitted in his cross-examination that the financed vehicle had been repossessed by him. However, he denied that he had forcibly repossessed the vehicle. He further added that he never told the accused that balance amount payable stood adjusted against the Crl Appeal No. 2063-SBA of 2006 -5- repossession of vehicle. Apparently, while settling accounts, the complainant-firm had not adjusted the value of the vehicle which stood repossessed by the complainant. Therefore, learned appellate Court was justified in coming to a conclusion that the cheque in question had not been issued on 17.5.1999 after settlement of the accounts but issued as blank as security when the loan was advanced by the complainant to the accused in the year 1996.
As is clear from the findings arrived at by the learned lower appellate Court, the complainant had tried to charge interest at the rate of 50% per annum from the accused. Initially, the interest had been calculated at the rate of 22% per annum on the borrowed amount of Rs.80,000/-. Again, while settling the accounts, the interest of Rs.32,686/- was claimed from the accused. In this way, the complainant was shown to be charging interest at the rate of 50% per annum, which being too exorbitant, could not be permitted.
In view of the above, no case is made out for interference in the findings arrived at by the learned lower appellate Court. The appeal is without any merit and, therefore, dismissed.
( T.P.S. MANN )
February 10, 2010 JUDGE
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