Punjab-Haryana High Court
M/S Guru Nanak Tractors vs Swarn Singh on 31 July, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-266-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A 266-MA of 2012 (O&M)
Date of Decision: July 31, 2013
M/s Guru Nanak Tractors ... Petitioner
Versus
Swarn Singh ... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. J.S.Virk, Advocate,
for the petitioner.
Paramjeet Singh, J.
The instant application has been filed under Section 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 19.01.2012 passed by the learned Sub Divisional Judicial Magistrate, Assandh, whereby respondent has been acquitted of the accusation under Section 138 of the Negotiable Instruments Act notice of which was served upon him.
Brief facts of the case as mentioned in the impugned judgment are as under:-
".... complainant is a partnership firm working under the name and style of M/s Guru Nanak Tractors, Kaithal Road, Assandh, District Karnal and deals in selling tractors and Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 2 implements and is having agency of Mahindra Tractors. Lakhwinder Singh being one of the partners is competent and authorize the complainant for purchase of a tractor. Accordingly, accused purchased a Mahindra Tractors, Model No. 265-D1 and also purchased a trolly through invoice No. 32 dated 26.06.2006 total amounting to Rs.3,25,000/-. Out of the said amount a sum of Rs. 2,28,000/- was received by the complainant through Mahindra Finance on behalf of accused as a part payment of the abovesaid tractor trolley. However, for the rest of the amount, accused asked the complainant that he has no money with him and assured that he will make the balance payment within a week and in case of failure, he will pay interest at the rate of 10.5% per month. Thereafter complainant several times visited the accused for the balance amount of the tractor trolley, but accused postponed the matter on one pretext or the other. Later on accused agreed to make payment and upon calculation a sum of Rs.1,24,000/- was found due on account of balance payment of tractor and trolley as well as interest accrued on the balance amount. So, in order to discharge his legal liability accused issued a duly signed cheque bearing No. 011681 dated 30.1.2008 for a sum of Rs.1,24,000/- drawn on Central Bank of India, Assandh from his account No. 5006. The complainant presented the said cheque in its bank account maintained with Central Bank of India, Branch Assandh on 30.01.2008. However, the said cheque had been dishnoured vide memo dated 31.01.2008 with the remarks "Account Closed." After receipt of the said memo from his banker, complainant through its partner Lakhwinder Singh got served a legal notice through registered AD as well as UPC calling upon the accused to make payment of the cheque within 15 days of the receipt Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 3 thereof. Since the accused failed to make payment of the cheque in dispute within the stipulated time framed even after issuance of statutory notice, hence the complaint."
On the preliminary evidence, the accused-respondent was summoned to face trial vide order dated 15.03.2009. Thereafter, accused was served with notice of accusation for offence punishable under Section 138 of the Negotiable Instruments Act,1881, to which he pleaded not guilty and claimed trial.
In order to prove the guilt of accused, complainant examined Sube Singh as CW1, Jasmer Singh as CW2 and CW3 Sinder Singh.
Thereafter, statement of the accused-respondent under Section 313 Cr.P.C. was recorded. All incriminating facts and circumstances were put to the accused wherein he pleaded complete innocence and false implication.
The learned Trial Court vide judgment dated 19.01.2012, after appreciating the evidence, acquitted the accused-respondent of the notice of accusation served upon him. Hence, this application for grant of leave to appeal.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"9. In the preliminary evidence one Lakhwinder Singh appeared by showing him as partner of M/s Guru Nanak Tractors. The complaint was also filed by Lakhwinder Singh Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 4 as partner of M/s Guru Nanak Tractors, but when notice of accusation was served upon the accused and when he faced trial then this Lakhwinder Singh who filed the complaint has not stepped into the witness box, rather one Jasmer Singh appeared in the witness box and tendered his affidavit Ex.PW2/A and in his affidavit he has claimed himself as partner. In the cross-examination he admitted that he has been authorized by the firm to file the complaint, but that authority letter has not been placed on the record and suggestion was put to the witness that he has not been legally authorized to pursue the complaint, so burden has shifted upon the complainant that Jasmer Singh was authorized person on behalf of partnership firm to pursue the complaint before the Court, to appear before the Court and to depose on behalf of the firm. Once he has not been given authority by the partnership firm, then how he came in the witness box and how he came to know about the facts deposed by him against the accused. So, complainant has failed to prove on record that CW2 was given any authority letter to appear in the Court. So, the complaint has not been persuaded by legally authorized person. No doubt originally it was filed by correct person but by at that time accused had not appeared and after appearance of the accused, complainant firm had to show the authority in favour of Jasmer Singh to appear on behalf of firm and to pursue the case in any manner. An application for substitution of complainant was moved which was allowed and amended title was filed on 16.11.2010 showing Jasmer Singh as partner of the firm, but despite all this, no authority letter has been produced on the case file showing authority in favour of Jasmer Singh to pursue the case. So, in this regard the evidence of CW2 cannot be Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 5 considered as the evidence of legally authorized person of complainant firm.
10. Moreover only cheque Ex.CW1/B and Memo Ex.CW1/C have been proved by CW1. No doubt at page No.2 of affidavit Ex.CW2/A complainant has mentioned about the documents cheque Ex.CW1/B, memo Ex.CW1/C, original envelope Ex.CW1/D A.D. Ex.CW1/E Postal receipt Ex.PW1/F and UPC receipt, Ex.CW1/G UPC, Ex.CW1/H legal notice, but mere mentioning of these documents which only tendered by Lakhwinder Singh in the preliminary evidence and at that time the accused had not been summoned, so mentioning of these documents have no value. It was duty of the complainant to prove and to put all these documents in the presence of the accused, so that accused could get an opportunity to cross examine the witness on all these documents. So, documents Ex.CW1/D to H which were tendered only in preliminary evidence by Lakhwinder Singh has not been proved by way of evidence act after serving notice of accusation to accused.
11. No account statement, has been produced, of the complainant. So, nothing can be gathered as to how there was any outstanding amount against the accused and how the liability of Rs.1,24,000/- was against the accused. The documents on the record does not show any delivery of trolly to the accused. Accused has also taken a plea that he deposited Rs.50,000/- in advance, so for all these purposes it was necessary for the complainant to produce their account statement and failure to prove the account statement also goes against the complainant.
12. CW2 Jasmer Singh who claims himself as partner of the firm has deposed in cross examination that he does not Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 6 know that a no due certificate has been given by the Finance Company (Mahindra and Mahindra) after getting the tractor back and this plea of giving the tractor to the finance company has been taken by the accused in his defence and for this purpose documents Ex.D9 and Ex.D10 can be seen. So, it was also incumbent upon the complainant to summon the record of Mahindra and Mahindra or to examine any witness from Mahindra and Mahindra by calling their record to get the true picture whether the tractor was taken by Mahindra and Mahindra and no due certificate has been given by them to accused and for this purpose and in the situation when the tractor has been taken back and no due certificate has been given, then cheque cannot be presented for encashment after the seizure of the vehicle and the owner has to take recourse to other legal remedies for recovery of the balance amount. In almost identical facts the Hon'ble Madras High Court in N. Rajangan vs. M/s Centurian Bank Ltd. 2011(1) CCC, 685 relying upon Sudha Beevi vs. State of Kerala 2011 (1) CCC 533 (Kerala) held as under:
"13. Considering the facts and circumstances of the case, this Court is of the view that where it is a hire purchase agreement or purchase on the basis of hypothecation, the same is laid down by the Kerala High Court based on the following principles:-
(i) The post dated cheques issued by the hirer were supported by consideration at the time when they were issued, they had ceased to be so when the vehicle was repossessed. The consideration had failed subsequently.
(ii) The post dated cheques in the hands of the
owner had become instruments for which
Kumar Virender
2013.08.06 14:25
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integrity of this document
CRM A-266-MA of 2012 (O&M) 7
consideration had failed.
(iii) As per Section 138 of Negotiable Instrument Act, in order to attract the penal provision, the debt or other liability must be a legally enforceable debt or liability. If the negotiable instrument is not supported by consideration, there is no question of the provisions of Section 138 of the Act being attracted.
14. In view of the same, this Court is also of the view that once the financier had exercised the option of seizure of the vehicle, the post-dated cheques obtained from the purchaser cannot be presented for encashment after the seizure. The owner has to take recourse to other legal remedies for recovery of the balance amount. If and when the vehicle is soled subsequently, the owner can recover the balance amount for adjusting the sale proceeds of the vehicle. Of course, in the post-seizure scenario, it may be open to the parties to agree upon a new schedule of payment or restructuring of the agreement concerned. So, the present case filed on the basis of the post-dated cheques issued by the petitioner is not attracted the offence under Section 138 of Negotiable Instruments Act, and hence, the same is liable to be quashed."
13. The accused has also relied upon various documents in his defence showing that he has moved a complaint under Section 406/420 of Indian Penal Code as well as another complaint under Section 12 of Consumer Protection Act, against the present complainant as well as Mahindra and Mahindra. These also shows that accused deposited a sum of Rs.50,000/- to the complainant in advance and had also given the cheque as security. Those complaints filed by the Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 8 accused are still pending and nothing has been proved on the record by the complainant in the present complaint to controvert all these documents and pleadings as raised by the accused in his defence. Regarding non-depositing of Rs.50,000/- in advance and giving cheque as security no account statement has been produced by the complainant connected to the accused.
14. In view of above reasons and discussion, this Court is of the considered opinion that the complainant has not been able to successfully establish on record that the cheque Ex.CW1/B was issued by the accused in discharge of his legally enforceable debt or liability....." Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 9
reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
"7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 10
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged Kumar Virender 2013.08.06 14:25 I attest to the accuracy and integrity of this document CRM A-266-MA of 2012 (O&M) 11 and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
As such, this application for leave to appeal is dismissed.
July 31, 2013 [Paramjeet Singh]
vkd Judge
Kumar Virender
2013.08.06 14:25
I attest to the accuracy and
integrity of this document