Karnataka High Court
Usman Gani S/O Syed Hussain Sab vs M/S Shriram Transport Finance on 4 June, 2019
Equivalent citations: AIRONLINE 2019 KAR 1878, 2020 (1) AKR 230
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL REVISION PETITION NO.100141/2017
BETWEEN:
USMAN GANI
S/O SYED HUSSAIN SAB
AGE: 46 YEARS,
R/O: THYGADAL VILLAGE,
SANDUR TQ, BALLARI DIST. ... PETITIONER
(BY SRI. T. BASAVANA GOUD, ADVOCATE)
AND:
M/S SHRIRAM TRANSPORT FINANCE
COMPANY LTD., HAVING REGISTERED
OFFICE AT CHENNI BY GPA HOLDER
DAKSHINA MURTHY
S/O G. MANJUNATH,
C/O. M/S. SHRIRAM TRANSPORT
FINANCE COMPANY LTD.,
KRISHNA NAGAR, SANDUR.
... RESPONDENT
(BY SRI. ANANTKUMAR S. HABIB, ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 (1) READ WITH 401 OF CR.P.C., PRAYING TO SET
ASIDE THE CONVICTION AND SENTENCE DATED 11.01.2016
PASSED BY THE CIVIL JUDGE AND JMFC AT SANDUR IN
C.C.NO. 675 OF 2011 AND CONSEQUENTLY SET ASIDE THE
CONVICTION AND SENTENCE DATED 10.03.2017, PASSED BY
THE II ADDL. SESSIONS JUDGE BALLARI IN CRL. APPEAL NO. 6
OF 2016 AND ACQUIT THE PETITIONER HEREIN.
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THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition has been filed by the petitioner/accused challenging the judgment passed by the II Addl. Sessions Judge, Ballari, in Criminal Appeal No.6/2016 dated 10.03.2017, whereunder the appeal was dismissed by confirming the judgment of conviction and order of sentence passed by the Civil Judge and JMFC, Sandur, in C.C.No.675/2011 dated 11.01.2016.
2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent.
3. The factual matrix of the case of the complainant is that, the complainant is a Finance Company giving loans to the persons who are intending to purchase the vehicles. The accused approached the complainant company to take a loan of Rs.11,46,680/- for purchase of HGV model 2006 vehicle bearing registration No.KA.35/8410 and he also executed :3: hypothecation agreement in favour of the complainant company and subsequently he became a defaulter and liable to pay a sum of Rs.8,50,000/-. For discharging the said amount, accused/petitioner issued a cheque bearing No.458530 dated 11.04.2011 for a sum of Rs.8,50,000/- drawn on Pragathi Gramina Bank, Chornur Branch. Thereafter, the complainant presented the said cheque through their banker viz., the Royal Bank of Scotland, N.V., Chennai, on 11.04.2011, and the said cheque was returned unpaid with an endorsement "insufficient funds" and the same was intimated on 21.05.2011. Thereafter, a legal notice came to be issued on 13.06.2011. Though the legal notice was served on 18.06.2011, the accused did not reply nor paid the amount and became a defaulter and, as such, a complaint was lodged for the offence under Section 138 of the Negotiable Instruments Act (for short the 'NI Act').
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4. In order to prove his case, the complainant got examined the Power of Attorney Holder of the company as P.W.1 and got marked Exs.P.1 to P.8. After closure of the evidence of the complainant, accused got examined himself as D.W.1 and got marked Exs.D.1 and D.2.
5. After hearing the learned counsel appearing for the parties, the Trial Court came to the conclusion that the accused committed an offence under Section 138 of the NI Act, convicted the accused and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- and, in default, to undergo simple imprisonment for one month. The Trial Court also directed the accused to pay compensation of Rs.17,00,000/-. Challenging the said judgment and order, the present petitioner filed Criminal Appeal No.6/2016. The Appellate Court, by its judgment dated 10.03.2017 dismissed the appeal by confirming the judgment passed by the Trial Court.
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6. It is the submission of the learned counsel for the petitioner/accused that the Court below has not considered the factual-situation; the cheque had been obtained by the complainant-Bank during the year 2006 and the vehicle has also been purchased in the year 2006 and subsequently, the cheques have been obtained on 11.04.2011 and on the same day, they were presented to the Bank at Chennai and that itself goes to show that the complainant company misutilised the cheque which were given in this behalf. It is his further submission that the signature on the cheque is not that of the petitioner/accused. He further submitted that though there was a hypothecation agreement, without there being any notice, the said vehicle was seized by the complainant-company. It is his further submission that the presumption which has been drawn by the Courts below is not acceptable in law. He further submitted that the Courts below ought to have looked into the weaknesses of the complainant and the :6: material which were placed on record go to show that some of the amount had been paid; and the receipts and slips obtained thereof had been lost, but the Courts below came to a wrong conclusion only because the receipts and the slips were not produced. He further submitted that the impugned judgments of conviction and sentence are perverse and not maintainable in law and the same are liable to be dismissed. Hence, he prays to allow the petition and to set aside the impugned order passed by the II Additional Sessions Judge, Ballari, as well as the judgment of conviction and order of sentence passed by the JMFC, Sandur.
7. It is the submission of the learned counsel for the respondent-complainant that the accused approached the complainant-company to purchase the vehicle and he availed the loan and he became a defaulter to the tune of Rs.8,50,000/-. In order to discharge the said debt, accused issued a cheque- Ex.P.2 and the same when presented to the concerned :7: bank, was dishonoured. Thereafter, a legal notice was issued and inspite of that, the petitioner/accused did not reply to the said notice nor paid the amount due, and he became a defaulter and thereby committed the offence under Section138 of the NI Act. It is his further submission that though it is contended by the learned counsel for the petitioner accused that company has no power to authorize its employee file a case and to depose on behalf of the company. But, in the facts and circumstances, it is seen that the GPA executed clearly goes to show that he was having authority to depose on behalf of the company. It is his further submission that the Trial Court as well as the Appellate Court, after considering the facts and circumstances of the case, came to a right conclusion and therefore, there are no good grounds to interfere with the judgments and orders of the Courts below. On these grounds, he prayed to dismiss the petition.
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8. I have carefully and cautiously considered through the submissions made by the learned counsel for the parties and perused the record.
9. Though several contentions have been raised during the course of the arguments by the learned counsel for the petitioner-accused, but the facts and circumstances regarding the accused-petitioner approaching the complainant-company for availing the loan to purchase a vehicle and issuance of cheque is not disputed. Even the signature on the cheque is not disputed. As could be seen from Ex.P.2, the petitioner/accused has issued the said cheque. Even when the accused came to be examined before the Court below, in his examination-in-chief, he has contended that the complainant is not a competent person to file the complaint; he has obtained a loan of Rs.8,82,000/- for purchase of the vehicle, but the complainant has wrongly mentioned the fact that he has availed the loan of Rs.13,53,100/-. It is his further :9: contention that the said loan was taken during the year 2006 and at that time, the complainant had obtained six blank cheques for the purpose of security for that loan and the same has been misutilised.
10. It is well settled proposition of law that when once the petitioner/accused admits the signature and that the blank cheques were obtained by the complainant, as per Section 20 of the NI Act, if any person signs and delivers the stamp paper of the cheque or any negotiable instrument either wholly blank or having written thereon an incomplete negotiable instrument, thereby he gives authority to the holder thereof to make or complete the said cheque. In that light when the petitioner/accused admits that fact that six cheques were obtained as a security for the loan and the same has been mis-utilised, then under such circumstances, burden shifts upon the petitioner/accused to substantiate the said fact. It is also the duty of the Court to draw a presumption under : 10 : Section 139 of the Act. When once the petitioner/accused admits the signature on the cheque, then thereafter the duty cast on the petitioner to rebut the said presumption by preponderance of probabilities. In this behalf, the petitioner/accused has not produced any cogent and acceptable evidence to accept the same. He admits having taken the loan and he also admits that six blank cheques were obtained and they bear his signature and it is his further submission that he has paid the said loan amount, but the receipts or the slips have been lost by him. This itself clearly goes to show that the contention taken up by the accused/petitioner has not been substantiated and proved in accordance with law. When a presumption is drawn and if it is not rebutted then, under such circumstances, the case of the complainant stands proved. Even though it is contended by the learned counsel for the petitioner/accused that the complainant was not having any authority to file a complaint, the same is not : 11 : seriously challenged and even the GPA has been produced before giving the evidence and the said fact has also been proved. It is the contention of the learned counsel for the petitioner that the cheque bears the date 11.04.2011 and the same has been submitted to the Bank at Chennai and it is highly impossible to present the said cheque immediately after obtaining it from the petitioner/accused. But, the records go to show that the said cheque was presented before the Royal Bank of Scotland on 14.05.2011 and thereafter it has been processed and a endorsement has been given that there is insufficient funds and thereafter a legal notice has also been issued. After receipt of the legal notice, the petitioner/accused has not paid the amount which was due to the complaint. When he fails to produce and prove the defence which he has taken, it can be said that the complaint and other averments have been proved in this particular behalf. Even during the course of cross-examination, the petitioner/accused has : 12 : admitted the signature bearing on the cheque and he has even admitted the fact that the said cheque belongs to his account and no other explanation has been given by the petitioner/accused as to under what circumstances the cheque-Ex.P.2 was given in favour of the complainant-company. Looking from any angle, the material clearly goes to show that the accused petitioner has availed the loan and, in pursuance of the amount due, he has issued Ex.P.2 and thereafter, he has become defaulter and thereby he has committed the offence under Section 138 of the NI Act.
11. I have carefully and cautiously gone through the judgments and orders of the Appellate Court as well as the Trial Court. Both the Courts have considered the material placed on record and have come to a right conclusion in convicting the petitioner/accused. The judgments and orders of the Courts below are neither perverse nor suffer from any illegality. There are no good grounds to interfere with impugned judgments and : 13 : orders of the Courts below; they deserve to be confirmed.
Taking into consideration the above facts and circumstances of the case, this revision petition stands dismissed.
Sd/-
JUDGE gab/kms