Criminal Misc. No. 372-MA of 2008 v. Satish Kumar

The complainant firm was carrying on business of finance. The accused/respondent, approached for purchasing one Tata Sumo, on hire purchase basis. Accordingly, Tata Sumo, bearing No. DL- Criminal Misc. No. 372-MA of 2008 2 4CD-4925, Model 1995, was given, to him, on hire purchase basis. Agreement dated 20.02.02 was executed and a sum of Rs. 1 lac, was advanced, to him, at the interest of 20% per annum for two years. The entire amount due, was payable, in 22 instalments of Rs. 6,000/- per month each and two instalments of Rs. 4,000/- per month each. On 22.05.02, another loan of Rs. 25,000/-, for carrying out the engine repair, was given, to the accused/respondent. Subsequently, the accused, failed to maintain the financial discipline and an amount of Rs. 1,34,794/-, became due against him, during December, 2002. The vehicle, was repossessed. It was in deplorable condition. Rs. 15,000/-, were spent, on the vehicle, before disposing if off, for a price of Rs. 1,20,000/-. Rs. 74,945/-, remained due, against the respondent. In order to discharge his liability, accused/respondent, issued a cheque dated 13.09.03, for a sum of Rs. 74,945/-, drawn on Citizen Urban Cooperative Bank Ltd., Kishanpura Branch, Jalandhar. When the same was presented, it was dishonoured, for want of sufficient funds. Thereafter, a statutory legal notice, was issued, to the accused, for payment, but to no avail. Ultimately, left with no alternative, a complaint, was filed.

3. The preliminary evidence was recorded. Thereafter, the trial Court, came to the conclusion, that there were sufficient grounds to summon the accused.

4. On his appearance, in this Court, the accused, was given notice, containing the sum and substance of the allegations, contained in the complaint. He pleaded not guilty and claimed Criminal Misc. No. 372-MA of 2008 3 judicial trial.

5. The complainant examined Dinesh Bhandari, partner of M/s Canara Financiers (CW1), Vishal Saini, Clerk-cum-Cashier, Citizen Urban Cooperative Bank, Kishanpura, Jalandhar (CW2), and Sardari Lal, Record Keeper, Punjab National Bank, Gulab Devi Extension Counter, Jalandhar (CW3). Thereafter, he closed his evidence.

6. The statement of the accused, under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the evidence of the complainant. He pleaded false implication. He examined Raksh Kumar son of Mangal Dass (DW1), in his defence. Rakesh Kumar, stated that he was guarantor of the accused. He further stated that the accused took a loan of Rs. 1 lac, from M/s Canara Financiers, for purchasing Tata Sumo. He further stated that, at the time of giving the loan, to the accused, the complainant got signed blank papers from him. He further stated that the complainant, took two blank signed cheques, from the accused, in his presence, and the vehicle, was repossessed by Dinesh Bhandari, in November, 2002. He further stated that the accused, was paying the instalments regularly. He further stated that, one cheque, had been misused by the father of Dinesh Bhandari, who filed complaint, under Section 138 of the Act.

7. The trial Court, after hearing the Counsel for the parties, and, on going through the evidence, on record, acquitted the accused, on the following grounds:- Criminal Misc. No. 372-MA of 2008 4 (i) That the complainant, did not produce, on record, the certified copy of Form A, to prove, that Dinesh Bhandari, through whom, the complaint, was filed, was a registered partner. (ii) That the complainant got signatures on blank papers, as also on blank cheques of the accused/respondent, which was proved from the agreement produced, on the record, which had blank columns. (iii) That the evidence of Dinesh Bhandari, clearly proved, that the complainant firm, had misused two blank cheques, for creating liability. (iv) That the cheques, were not issued, in the discharge of the legally enforceable debt.

8. I have heard the Counsel for the applicant/appellant, the Counsel for the respondent, and, have gone through the documents, on record, carefully.

9. The Counsel for the applicant/appellant, submitted that the trial Court, was wrong, in acquitting the accused. He further submitted that, no doubt, Form A, was not produced, on the record, to show, that Dinesh Bhandari, was the registered partner of the partnership firm, yet the other documents, were sufficient, to prove, this factum. He further submitted that no blank cheque, was obtained, from the accused/respondent, nor the same, was mis-used for creating liability. He further submitted that the cheques, were issued, in the discharge of legally enforceable liability, by the accused/respondent, and when the same were dishonoured, he Criminal Misc. No. 372-MA of 2008 5 committed the offence, punishable under Section 138 of the Act. He further submitted that the judgement of acquittal, rendered by the trial Court, being illegal and perverse, is liable to be set aside.

10. The Counsel for the respondent submitted that the reasons recorded by the trial Court, for the acquittal of the accused/respondent are sound. He further submitted that the judgement does not suffer from any illegality or perversity, warranting the interference of this Court.

11. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the applicant/appellant, and the Counsel for the respondent, in my considered opinion, the application, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is settled principle of law, that in an appeal, against the judgement of acquittal, no doubt, the Court, can reappreciate and reappraise the evidence, yet, if the conclusion, arrived at, by the Court below, is reasonable, being based on the proper appreciation of evidence, the mere fact, that the Appellate Court, could come to a different conclusion, on the basis of the same evidence, would not be sufficient to set aside the judgement of acquittal. It was not proved, that Dinesh Bhandari, was competent, to file the complaint, on behalf of the complainant firm. As stated above, Form A, showing that, Dinesh Bhandari, was a registered partner of the firm, was not produced. Even no other evidence, was produced, that he was a registered partner of the firm. So the complaint, was not filed, by the complainant firm, through a duly authorized person and, as such, was Criminal Misc. No. 372-MA of 2008 6 not maintainable. The trial Court, was, thus, right in holding, that the accused/respondent, was liable to be acquitted, on this ground.

12. Even the trial Court, was right, in holding that, it was not proved, that the cheques, were allegedly issued in the discharge of legally enforceable liability. The hire purchase agreement D2, which was placed, on the record, had blank columns. D2 hire purchase agreement, therefore, clearly showed, that blank cheques, were obtained, by the applicant/petitioner, from the accused/respondent. On that document, the signatures of the accused/respondent, were taken. Similarly, blank cheques, were taken from him. When the vehicle, was repossessed, by the financier, there was no question of saddling the respondent with further liability. The trial Court, was, thus, right in holding, on reappreciation of the evidence, that the cheques, were not issued, in the discharge of legally enforceable liability, and, as such, no offence, punishable under Section 138 of the Act, was committed, by the accused. No ground, therefore, is made out, to interfere with the judgement of acquittal.

13. For the reasons recorded above, Criminal Misc. No. 372-MA of 2008, being devoid of merit, must fail, and the same stands dismissed.

23.02.2010 Amodh (SHAM SUNDER) JUDGE