IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRURAY, 2019 BEFORE THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1251 OF 2010 BETWEEN:
M/s. Shriram Transport Finance Co. Ltd., No.29/A, K.H. Road, Bengaluru. Represented by its Power of Attorney Sri. Madhusudan M.R. ...Appellant (By Sri. M. Ashok Kumar, Advocate) AND:
Mr. Syed Aleem Shabir S/o Syed Nabhi, Sania Tours and Travels, Gandi Nagara, Bengaluru. ...Respondent (By Sri. P. Chandrashekar, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the order dated 27.09.2010 passed by the XVIII ACMM & XX ASCJ, Bengaluru in C.C.No.2984/06 - acquitting the respondent/accused for the offence P/U/S 138 of N.I. Act.
This Criminal Appeal having been heard and reserved for Judgment on 19.02.2019, this day the Court delivered the following:
JUDGMENT In the complaint filed by the present appellant under Section 200 of the Code of Criminal Procedure, 1973, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I. Act’), the learned XVIII ACMM & XX ASCJ, Bengaluru City (hereinafter for brevity referred to as `trial Court’), in C.C.No.2984/2006 pronounced the judgment of acquittal on 27.09.2010. It is against the said judgment of acquittal, the complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the accused had entered in to a hire purchase agreement with the complainant-Company on 25.01.2003, in connection with hiring of a vehicle bearing No.KA-02-B-829 with one Sri. Tanwar as a guarantor. Towards final settlement, the accused had issued a cheque bearing No.655553, dated 17.08.2005 drawn on Indian Overseas Bank, Bengaluru City for a sum of `1,08,303/-. When the complainant presented the said cheque for realisation with its banker, the same returned unpaid with an endorsement “insufficient funds”. Thereafter, the complainant issued notice upon the respondent/accused calling upon payment of cheque amount within 15 days. Since the respondent failed to make the payment, the complainant was constrained to institute a criminal case against him for the offence punishable under Section 138 of N.I. Act.
3. To prove his case, the complainant got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-15. On the other hand, the accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-12.
4. After hearing both side, the trial Court by its impugned judgment dated 27.09.2010, acquitted the accused of the alleged offence. It is against the said judgment, the appellant has preferred this appeal.
5. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
6. Heard arguments from both side. Perused the Memorandum of Appeal, impugned judgment and also the Lower Court Records.
7. On behalf of the complainant-Company, one Sri. Madhusudan M.R., who is stated to be the Power of Attorney Holder of the Complainant-Company was examined as PW.1. The said witness reiterated the summary of the complaint in his affidavit evidence in the form of examination-in-chief. He has stated that the accused who entered into a hire purchase agreement on 25.01.2003 with respect to a motor vehicle with the complainant-Company had issued the cheque in question towards final settlement. But the same came to be dishonored for the reason of insufficient funds, when presented or realisation. The notice issued thereafter upon the accused calling upon him to make payment of cheque amount also did not yield any result, as such, a complaint was filed against him. In his support he got marked documents from Exs.P-1 to 15.
8. In his cross-examination, it was suggested to him that the complainant-Company had seized the vehicle under hire purchase agreement and sold it. Thereafter, out of the sale proceeds adjusting the entire loan liability, the balance amount was also refunded to the accused, as such, there was no liability towards the complainant. However, those suggestions were not admitted as true by the witness.
9. The accused got himself examined as DW.1, who in his affidavit evidence, had taken contention that in the year 2002, he had availed loan of `2,25,000/- from the complainant-Company with an intention to purchase goods vehicle. At that time, the Company had asked him to deposit a sum of `1,00,000/- as security deposit and also had obtained two blank cheques as security. After obtaining the loan, he had repaid the same through installments amounting to `1,24,000/-. However, alleging due of few installments, the complainant-Company seized his vehicle and sold the same to a third party for a sum of `3,00,000/-.
10. After adjusting the sale proceeds towards the alleged due, the Company has refunded him the balance amount of `1,00,836/- on 28.04.2005 through a cheque which he got realised by crediting the same to his bank account. Though he requested the Company for returning the two blank cheques collected by him, the Company stated that one cheque was adjusted to the payment of insurance premium and other one was misplaced. However, the alleged misplaced cheque was misused by the Company. The witness further stated that apart from instituting the present complaint, the complainant had also initiated arbitration proceedings for recovery of the amount against him. However, the Arbitrator has dropped the said proceedings. The denial suggestions made to him in his cross-examination were not admitted as true by him.
11. On behalf of the accused, one Sri. Taswar Hussain was examined in chief as DW.2. However, since the said witness did not tender himself for cross- examination, his evidence was discarded by the trial Court.
12. In the light of the above, it was the arguments of learned counsel for the appellant that the appellant being a Company, its officials keep on changing, as such, at the time of filing the criminal complaint, whosoever the officer in employment, he would be authorised to file a complaint, as such, in the instant case, one Sri. Madhushudan M.R., Power of Attorney Holder has filed the complaint and led his evidence. Learned counsel for the respondent submitted that even though the Power of Attorney Holder can prosecute the matter, but he should have personal knowledge about the case, since the Power of Attorney Holder in the instant case has specifically admitted that he has no personal knowledge of the matter, the case itself is not maintainable.
13. In the instant case, private complaint under Section 200 Cr.P.C. has been filed by the complainant- Company being represented by its Power of Attorney Holder, Sri. Madhusudan M.R. The Hon’ble Apex Court, in case of A.C.Narayanan Vs. State of Maharashtra and another reported in (2014) 11 SCC 790 at paragraph Nos.29 and 30 of its judgment was pleased to observe as below:
“29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of NI Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act.
30. In the light of the discussion, we are of the view that power-of-attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the NI Act. An exception to the above is when the power-of-attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the power-of- attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.”
From the above judgment it is clear that a Power of Attorney Holder in-charge of the business of the complainant-payee though can depose as a witness, however, he should satisfy that he alone is personally aware of the transactions. Nevertheless the explicit assertion as to the knowledge of a Power of Attorney Holder about the transaction in question must be satisfied in the complaint.
14. In the instant case, nowhere in the complaint, the Power of Attorney Holder has stated that he has the knowledge of the transaction. Admittedly, he has not witnessed the transaction in any of these capacities either as an agent of the payee or holder in due course.
15. In his evidence as PW.1, in his cross examination, the said Power of Attorney Holder has clearly stated that he has no personal knowledge with respect to the loan transaction, which is the subject matter of the case. That being the clear statement from none else than the Power of Attorney Holder that he had no knowledge of the alleged loan transaction including the issuance of the cheque, then as per A.C. Narayanan’s case (supra), he cannot maintain the complaint, as such, at the very threshold on the point of maintainability the appellant fails.
16. When the merit of the case is considered, it can be seen that admittedly the accused had availed loan of `2,25,000/- from the complainant for purchase of Tata-709 goods vehicle in which regard, on 25.01.2003 both parties had entered into an agreement. It is not in dispute that the said vehicle was seized by the financier i.e., the complainant for the alleged non- payment of loan installments as and when they were due. The accused though has stated that he had issued two blank cheques including one in question at the time of said availment of loan, but issuance of the cheque from the accused to the complainant since is not in dispute, it forms a presumption in favour of the complainant.
17. The defendant, in order to rebut the presumption that is formed in favour of the complainant has stated that after the seizure of his vehicle which was financed by the complainant, the said complainant sold the same and after appropriating the sale proceeds towards the outstanding loan liability, has paid a sum of `1,08,303/- to him on 17.08.2005 vide cheque No.655553, which cheque has been realised by the accused and the said amount is credited to his bank account. In that regard, he has also produced his bank passbook at Ex.D-12, which shows a relevant entry of the credit of the said amount from the complainant- Company on 28.04.2005. Though the complainant has denied the same and has taken a contention that the same was with respect to different transaction, but has failed to prove as to what that other transaction was. He has not produced any document to show that there was any other transaction apart from the one in question and it was in that regard the said payment through cheque for a sum of `1,00,836/- was paid to the accused. In addition to the above, as rightly observed by the trial Court, neither in his complaint, nor in his evidence as PW.1, the complainant has anywhere stated as to how the alleged cheque amount of `1,08.,303/- was paid to the accused.
In addition to the above, as rightly observed by the trial court, neither in his complaint, nor in his evidence as PW.1 the complainant has anywhere stated as to how the alleged cheque amount of `1,08,303/- was due to it by the accused. The complainant-Company being an established finance company, though is expected to be in possession of the documents showing details of the same, has not bothered to give any details about the alleged outstanding liability. Even though learned counsel contended that he has produced a copy of the statement of account at Ex.P-8 to show the outstanding liability, but the said document is admittedly not a ledger copy or the copy of the books of accounts, which the complainant-Company maintains in its ordinary course of business. The said document is shown to be a statement of account on the letterhead of the complainant-Company, as such, mere marking of the said document by ipso facto, would not establish that the amount shown therein was an outstanding liability payable by the accused to the complainant.
18. In addition to the above, except marking the said document at Ex.P-8, the complainant-Company has not taken any pain even in his oral evidence also to explain as to what that document is and what it depicts.
As such, mere marking of a document by itself cannot be held that the contents therein has stood established or proved, that too, when the accused has specifically denied the very authorship and correctness of the said document. Therefore, even though the issuance of the cheque at Ex.P-1 is taken as proved and the presumption under Section 139 of N.I. Act is formed in favour of the complainant, but the accused could able to successfully rebut the said presumption through the cross-examination of PW.1, as well as by leading his evidence as DW.1 and producing supporting documents. Thus, analysing these aspects, since the Court below has arrived at a proper finding of acquitting the accused of the alleged offence, I do not find any reason to set aside the said judgment.
Accordingly, I proceed to pass the following order:
ORDER The Appeal stands dismissed. The judgment of acquittal passed by the learned XVIII ACMM & ASCJ, Bengaluru City, in C.C.No.2984/2006, dated 27.09.2010, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial without delay, along with lower Court records.
Sd/- JUDGE BMC