Karnataka High Court
M/S Shriram Transport Finance Co Ltd vs Sri H Yallapa Naik on 19 February, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 2526/2009
BETWEEN:
M/s. Shriram Transport
Finance Co., Ltd.,
A company registered under the
Companies Act, having its
Administrative Office at
Mookambika Complex, III Floor,
4, Lady Desikacharya Road,
Mylapore, Chennai,
having its Branch Office at Hubli,
Represented by its
Power of Attorney Holder
Shri. G. Krishnamurthy
S/o G. Devareddy Gouda,
Age: 32 years, Occupation: Service,
Rajapur Skies,
Opposite Jayaram Hospital,
College Road, Hospet. ... Appellant
(By Sri. Ananthkumar S. Habib, Adv.)
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AND:
Sri. H. Yallappa Naik
S/o Sri. Hanumanthappa,
Age: Major, Occupation: Business,
R/o Hotel Vyasa,
Vyasanakeri, Hospet,
District Bellary. ... Respondent
(By Sri.K.S. Patil, Adv.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(4) OF THE CODE OF CRIMINAL
PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED
02.12.2008 PASSED BY THE ADDITIONAL CIVIL
JUDGE (JR. DVN.) AND J.M.F.C., Hospet in C.C.
No.2935/2007 AND CONVICT THE RESPONDENT FOR
AN OFFENCE PUNISHABLE UNDER SECTION 138 OF
NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
The brief facts of the case that emanate from the records are that the appellant herein filed a private complaint under Section 200 of Criminal Procedure Code against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act on the allegations that the respondent has issued a cheque for a sum of Rs.2,10,000/- in favour of the appellant and the same came to be dishonoured on presentation to the concerned Bank of the appellant.
2. It is the case of the appellant that the respondent (hereinafter styled as 'accused') has availed loan from the complainant to purchase a TATA Tipper Heavy Goods vehicle bearing its Regn. No. KA-35-8552 under Hire purchase agreement for purchase value of Rs.12,06,600/-. As he became defaulter the said vehicle was seized by the appellant and some amount 4 was realised. Even after realisation of the sale amount from the said TATA Tipper vehicle the accused was in due of Rs.2,10,000/- and for discharge of the said debt the accused issued a cheque for discharge of his debt or liability.
3. The Trial Court has taken cognizance and issued summons to the accused. The accused appeared before the Court and contested the proceedings. The complainant has let evidence, examined himself as PW-1 and got marked 10 documents Ex.P1 to P10 and on the other hand, the accused did not choose to lead any evidence. After appreciating the oral evidence of the complainant, the Trial Court has come to the conclusion that the complainant has not made out a case against the accused beyond reasonable doubt in order to convict the accused under Section 138 of Negotiable Instruments Act and accordingly, the accused was 5 acquitted. Feeling aggrieved by the said judgment of acquittal, the present appeal is preferred.
4. The sum and substance of the arguments of the learned Counsel for the appellant is that the accused has admitted the issuance of the cheque and his signature on the cheque. The initial burden of proving the existence of debt or liability by the complainant has been discharged by means of admission by the accused. It is contended that in order to rebut the said presumption, the accused has not at all produced any material before the Trial Court except putting some suggestions in the course of cross-examination of the complainant. Therefore, the Trial Court has committed a serious error in holding that the accused has rebutted the said presumption of law drawn in favour of the complainant.
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5. Per contra, the learned Counsel for the respondent strenuously contends that though there are certain documents with the complainant which are in favour of the accused, but the complainant has not produced them before the Trial Court. It is contended that by virtue of the relationship between the complainant and the accused as that of a creditor and debtor the complainant ought to have produced the documents showing the outstanding liability of the accused as on the date of issuance of the said alleged cheque. It is the contention of the respondent that at the time of hire purchase transaction, the accused had issued some blank signed cheques in favour of the appellant and one of them has been misused by the appellant even after the entire transaction is closed. Therefore, the appellant could not produce any other material before the Court. If at all those materials like account extract, hire purchase agreement and the sale transaction under 7 which the said Tipper vehicle has been sold, would have been produced, the accused would have been successful in showing that he was not due of any amount. Therefore, the complainant has virtually prevented the accused from the facility of those documents. The existence of those documents and the entire transaction are all admitted by the complainant. Therefore, the Trial Court appreciating these materials on record, come to the conclusion that the complainant has not established its case and therefore, the Trial Court has not committed any error in acquitting the accused.
6. I have carefully perused the evidence of the complainant and also judgment passed by the Trial Court. On over all analysis of the entire documents placed on record, the only point that arise for consideration by this Court is :
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1. Whether the Judgment of the Trial Court in acquitting the accused is perverse, illegal and is erroneous and requires to be interfered by this Court "
2. What Order ?
7. Before adverting to the factual matrix of this case and analytical approach of the evidence before the Trial Court, it is just and necessary for this Court to bear in mind few guidelines laid down by the Apex Court as to how the Appellate Courts have to deal with the appeals against the acquittals.
8. In a decision reported in AIR 2012 SC 1292 between Govindaraju alias Govinda Vs. State by Sriramapuram P.S. and another the Hon'ble Supreme Court held that :
"Innocence of accused - Presumption as a person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of 9 such presumption which could be interfered with by the Courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the Court, either of law or of appreciation of evidence. The Legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 Cr.P.C. This is an indication that appeal from acquittal is placed at a somewhat different footing than a normal appeal".
In another Ruling reported in AIR 2013 SC 3033 between State of U.P. Vs. Gobardhan and others. Again, the Apex Court caution that :
"The Appellate Court can only interfere with the order of acquittal in exceptional cases whether there are compelling reasons to interfere and judgment under appeal is found to be perverse. The Appellate Court should 10 bear in mind the presumption of innocence by the accused is fortified by the judgment of the Trial Court and interference in a routine manner where the other view is possible should be avoided unless there are good reasons for interference."
Bearing in mind the above said guidelines, now it is just and necessary for this Court to appreciate the evidence on record and to find out whether the order of the Trial Court is so perverse, erroneous and illegal in order to interfere with such an order.
9. It is also well settled principles of law that the accused need not prove his case beyond reasonable doubt as it is incumbent on the complainant to prove its case beyond reasonable doubt. The accused can prove his case by means of preponderance of probabilities either by means of examining himself and producing documents before the Court or cross-examining the prosecution witnesses and during the course of cross- 11 examination elucidating doubtful circumstances in favour of the accused which can tilt the case in his favour.
10. The Trial Court after appreciating the materials on record acquitted the accused on the ground that the hire purchase agreement entered into between the complainant and the accused was cancelled and the complainant has seized the vehicle from the accused and recovered the loan amount, so the accused is not liable to pay the cheque amount to the complainant. It is also the observation made by the Trial Court that the complainant has not produced any materials to show as to when the vehicle of the accused was seized and for how much amount the said vehicle was sold and what was the remaining amount and how and when the cheque was issued by the accused in order to discharge any of his liability. Though the accused has not examined himself and produced any document but as 12 could be culled out from the cross-examination of the complainant, his contention is that he has not in due of any amount and by virtue of selling of the vehicle in question, the entire amount has been recovered by the complainant and the entire amount deemed to have been discharged by the accused. There was absolutely no due after recovering of the sale consideration out of the sale of the said vehicle i.e. the reason why the complainant has not produced any documents before the Court. In my opinion, this is a reasonable claim of the accused which puts the complainant on to his original burden to discharge that there was existence of a debt or liability on the date of issuance of the cheque. The accused need not prove by means of placing any materials before the Court diverting the complainant for discharging his burden. It is worth to note a decision of the Apex Court reported in (2010) 11 SCC 441 13 between Rangappa Vs. Sri. Mohan. The Full Bench of the Apex Court held that :
"The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
11. Looking upon the above said principle, let me see the cross-examination of the complainant. Of course, the complainant has stated in his examination-in-chief 14 in so many words that the accused has issued the cheque in discharge of his debt. The GPA Holder of the complainant has produced certain documents i.e. Ex.P4
- the legal notice. The learned Counsel in fact, on the ground that the accused has not replied the legal notice issued by the complainant, that itself is a badge of his admission with regard to the existence of a debt or liability on his part, otherwise, he would have put forward his defence by way of a reply notice. But it is not a civil case wherein the complainant has taken the responsibility of proving the allegations against the accused. The non-performance of some act by the accused cannot be in any manner taken as a lapse on the part of the accused and to hold that the inaction on the part of the accused itself is sufficient to convict the accused. Because it is the burden of the complainant to bring home the guilt of the accused beyond reasonable doubt.
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12. In the course of cross-examination, the Power of Attorney Holder of the complainant has accepted that he has got some documents pertaining to the hire purchase agreement and also the documents which are taken from the accused at the time of loan transaction. But he states that he has not produced those documents. He has also admitted that he does not know in how many installments the accused has paid the amount of loan but no document is produced to that effect. He pleads his ignorance as to how much amount was due from the accused and he also does not know the details of the transaction and he also says that he has not produced any documents to show that how much amount was due from the accused. He also admits during the course of cross-examination that in order to seize the vehicle one should issue notice to the possessor of the said vehicle. But he has not produced any documents to show that any notice was issued to 16 the accused, to show that for how much amount the said vehicle was sold. It is also admitted that if a person commits any default for payment of the loan amount then only the property would be sold. It is suggested that under the hire purchase agreement, the accused was not at all due in any amount and the said hire purchase agreement was cancelled long back and it is also suggested that the accused has given the cheque as a security for the payment of the debt and the same has been misused.
13. Looking to the above said evidence of the complainant, it is clear that there was a loan transaction between the accused and the complainant. When it is the specific case of the accused that he has given the said cheque when hire purchase agreement was entered into between the parties and subsequently, the said vehicle of the accused was sold and some amount was realised and the accused further takes up 17 the defence that the entire amount due under loan transaction has been covered by means of selling the vehicle of the accused. In my opinion, this fact is sufficient to create a reasonable doubt as to what exactly was the due from the accused in order to enforce any cheque even if it was issued by the accused at any point of time, unless the existence of debt or liability is established by the complainant under the cheque. Therefore, looking from the above said circumstances, I don't have any other view except the view taken by the Trial Court.
14. Therefore, in view of the above said Rulings of the Hon'ble Supreme Court when the judgment of the Trial Court is not illegal or erroneous, such view is also possible on the basis of the evidence. This Court even if it comes to the conclusion that other view is also possible such view cannot be substituted unless the 18 order is so perverse and such interference could not have been drawn by the Trial Court at all.
15. Under the above said circumstances, the appeal deserves to be dismissed on this ground. Therefore, there is no question of interfering with the judgment passed by the Trial Court. With these observations, I answer the points formulated by me in the Negative and proceed to pass the following Order :
The appeal is dismissed.
SD/-
JUDGE Rbv