Raipur (C.G.) v. Yashwant Yadav S
Case Details
1 2025:CGHC:12879 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 645 of 2024 Cholamandalam Investment And Finance Co. Ltd A Company Registered Under Companies Act, 1956 Having Corporate Office At Chennai, Through Power Of Attorney Holder Namely Shri Yadav Kamble S/o Sarjerao Kamble, Aged About 35 Years, R/o G.E. Road, Raipur, Office Address - National Corporate Park, In Front Of Anupam Garden, G.E. Road, Raipur, District - Raipur (C.G.) versus Yashwant Yadav S/o Punit Ram Yadav Aged About 50 Years R/o Village - Gondapara, Police Station - Goriyadeeh, Tahsil - Abhanpur, District - Raipur (C.G.) ... Respondent ... Appellant For Appellant
Legal Reasoning
: Mr. Chandrikaditya Pandey, Advocate on behalf of Mr. Dharmesh Shrivastava, Advocate. For Respondent : None. Hon'ble Shri Justice Narendra Kumar Vyas Order On Board 18.03.2025 1. This appeal has been preferred by the appellant/Financial Institution assailing the order dated 03.03.2021 passed by the learned Judicial Magistrate First Class, Raipur, District- Raipur (C.G.) in Criminal Complaint Case No. 1464/2014 by which the respondent has been acquitted for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act, 1881”). 2. The brief facts as reflected from records are that the appellant/complainant being financial institution has financed the vehicle to the respondent/accused in terms of the agreement executed ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.04.01 10:48:32 +0530 2 between the complainant and the accused. According to the complainant, Rs. 2,73,932/- was to be recovered from the respondent/accused as he has not paid installment. It has also been contended that the respondent/accused issued a cheque bearing cheque No. 022786 on 29.04.2014 amounting to Rs. 2,73,932/- payable at H.D.F.C. Bank, Branch- Navapara, Raipur, District- Raipur towards repayment of loan. The said cheque was deposited by the complainant on 29.04.2014 which was returned on 08.05.2014 with a note “insufficient Fund”. Thereafter, the complainant sent a legal notice to the respondent/accused on 28.05.2014 but he did not return the amount to the complaint, which has necessitated the complainant to file a complaint under Section 138 of the NI Act, 1881. 3. Learned trial Court after taking cognizance of the matter, issued summon to the accused. The accused appeared before the trial Court. The complainant to substantiate its case has exhibited documents Power of Attorney (Ex. P/1), Cheque dated 29.014.2014 (Ex. P/2), Cheque Dishonour memo slip (Ex. P/3), Information Letter (Ex. P/4) & Notice Postal Receipt (Ex. P/5). The complainant to examine its case has examined Yadav Kamble (PW-1) who examined by way of affidavit as provided under Section 145 of the NI Act has extensively cross- examined by the accused wherein he has stated that the vehicle was financed in the year 2013 as per the agreement arrived at between the parties, monthly 41 installments of Rs. 8608/- each has to be paid by the complainant. He has also stated that he is not aware whether the said cheque was given by the accused as security or not. He has further stated that the the information regarding seizure and sale of the vehicle was duly intimated to the accused, but the complainant has not 3 submitted any document to demonstrate such facts. He has also admitted that after vehicle is seized and sold, the amount received from sale of the vehicle has been adjusted against the loan but no document to this effect has been placed on record. He has further stated that no consent is required from the previous owner before selling the seized vehicle where the finance has not been cleared by the borrower. 4. The respondent/accused has examined under Section 313 of the Cr.P.C. wherein he has stated that the cheque was given to the complainant company as security. He has also stated that he was aware that if the installment is not paid, the vehicle is seized. 5. Learned trial Court after appreciating the evidence and material place on record has recorded its finding at paragraph 11 that the amount received from sale of the vehicle after seizure by the complainant, has already been adjusted from the rest loan amount and legal liability for debt of Rs. 2,73,932/- is not proved, therefore, the same cannot be termed that the cheque was given towards liability. Accordingly, the offence under Section 138 of NI Act is not attracted as the cheque was given as security and acquitted the accused for commission of offence under Section 138 of NI Act by dismissing the complaint filed by the appellant/complainant. 6. Being aggrieved with this order, the complainant has preferred rthis appeal mainly contending that the learned trial Court has committed illegality in recording finding that the cheque was not given towards any liability and would pray for allowing the appeal. 7. On the other hand, learned counsel for the respondent/accused 4 supports the impugned order and would pray for dismissal of the appeal. 8. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 9. From perusal of evidence and material on record, the finding recorded by the learned trial Court seems to be just and proper as it is incumbent upon the complainant to plead and prove that the cheque was given towards debt or liability. The complainant has not placed any material on record or statement of account showing the liability of the accused after selling the vehicle or before selling of the vehicle to establish that the cheque was given towards any debt or liability to draw presumption in favour of the complainant. 10. Thus, the finding recorded by the learned trial Court is legal and justified in view of the law laid by Hon’ble the Supreme Court in case of M/s Rajco Steel Enterprises Vs. Kavita Saraff & another [2024 insc 288] wherein Hon’ble the Supreme Court has in paragraph No.9 been held as under:- “11…………. On the question as to whether the sum involved in the cheques was advanced in discharge of a legally enforceable debt or not, the petitioner has failed to show if any sum was advanced towards financial assistance. The High Court found that the debt/liability, in discharge of which, according to the petitioner, the cheques were issued, did not reflect in the petitioner’s balance-sheet. The other partners of the firm did not depose as prosecution witnesses to establish that the cheque-amounts were advanced to the accused as financial assistance. The respondent no.1/accused has put up a plausible defence as regards the reason for which the petitioner’s funds had come to her account. Both the appellate fora, on going through the evidence did not find existence of any “enforceable debt or other liability”. This strikes at the root of the petitioner’s case. 12. As the impugned decision is primarily based on considering the evidences produced by the respective parties, we do not 5 consider it necessary to individually deal with the ratio of the respective decisions relied on by the learned senior counsel representing the parties. The principles emerging from these authorities have been applied in the judgment of the High Court. In this judgment also, we have taken into consideration the positions of law reflected in these authorities. We are of the opinion that there is no perversity in the finding of the High Court, and prior to that, in the finding of the First Appellate Court, that went against the complainant/petitioner. It cannot be held that these findings were perverse, or based on no evidence. No point of law is involved in this set of cases, that would warrant our interference. We accordingly dismiss these petitions.” 11. In view of the fact and circumstances of the case and law laid down by Hon’ble the Supreme Court in case of M/s Rajco Steel Enterprises (supra), the finding recorded by the learned trial Court is just and proper and does not warrant any interference by this Court. 12. Accordingly, the instant appeal is liable to be and is hereby dismissed. Sd/- (Narendra Kumar Vyas) Judge Arun