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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 05TH DAY OF SEPTEMBER 2013

BEFORE

THE HON’BLE MR.JUSTICE N.ANANDA

CRIMINAL REVISION PETITION No.920/2010

BETWEEN:

SRI HAMMIGI VEERANNA

S/O SRI HAMMIGI SOMMANNA
AGED ABOUT 50 YEARS
R/A 519/1, CHAMRAJPET
DAVANAGERE. ... PETITIONER

(BY SRI PRASANNA B R, ADV. FOR M/s.M RAMBHAT &

SREEPADA ASSOCIATES, ADVS.)
AND:
M/s.SRIRAM TRANSPORT FINANCE COMPANY LTD.
NO.29/A, II FLOOR, K H ROAD
BANGALORE-560027
REP. BY ITS GPA HOLDER
MR. NAGABUSHANA M C. ... RESPONDENT

(BY SRI M J ALVA, ADV.)

THIS REVISION PETITION IS FILED UNDER SECTION 397

r/w 401(1) CR.P.C., PRAYING TO SET-ASIDE THE JUDGMENT
AND ORDER DATED 31.05.2010 MADE IN CRL.A.NO.457/09
PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I,
BENGALURU CITY & ETC.

THIS REVISION PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 29.08.2013, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER

The petitioner (hereinafter referred to as the ‘accused’)

was tried for an offence punishable under Section 138 of the

Negotiable Instruments Act in C.C.No.11509/2007 on the

file of XII Additional Chief Metropolitan Magistrate Court at

Bangalore.

2. The learned trial judge held the petitioner guilty of

an offence punishable under Section 138 of the Negotiable

Instruments Act. Therefore, petitioner was before the

I-appellate court in Crl.A 457/2009. The learned judge of

the I-appellate court on re-appreciation of evidence has

confirmed the findings of the learned trial judge. Therefore,

the petitioner is before this court.

2. I have heard learned counsel for petitioner and

learned counsel for respondent.

3. The averments of complaint are as follows:-

The complainant is a public limited company duly

incorporated and engaged in the business of providing

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financial assistance under Hire Purchase Scheme for

vehicles. The accused is one of the customers. The accused

had hired vehicle bearing registration No.KA-17/A-566

under Hire Purchase agreement dated 05.05.2004. The hire

amount became due and the complainant demanded the

same from the accused. The accused issued a cheque

bearing No.729495 dated 25.10.2006 in favour of

complainant for a sum of Rs.2,50,000/- drawn on

Chitradurga Grameena Bank at Holalkere. On presentation,

the cheque was dishonored for want of sufficient funds. The

complainant caused legal notice on 03.01.2007. The legal

notice sent through registered post was returned with an

endorsement ‘absent’ however, the copy of legal notice sent

under ‘Certificate of Posting’ has been received by the

accused.

4. The accused denied the entire transaction.

The accused has contended that complainant had taken

quotation for five vehicles and complainant directed accused

to make down payment of Rs.50,000/- per vehicle.

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On 12.05.2004, a sum of Rs.9,45,000/- by means of

Demand Draft and cash of Rs.50,000/- per vehicle has been

paid to M/s.Bellad Engineering Pvt.Ltd., Hubli in respect of

five vehicles. As there was difference between the accused

and the dealer viz., M/s.Bellad Engineering Pvt. Ltd., Hubli,

the accused informed the complainant to cancel the deal of

five chassis and return the down payment made by the

accused on 12.05.2004. The dealer returned a sum of

Rs.9,45,000/- each in respect of two vehicles without any

interest but, the cash payment made by the accused was not

returned. The complainant instead of persuading the dealer

to return the amount with interest had written a letter to the

dealer not to return the margin money and concession for

remaining three chassis. The accused was in need of funds,

therefore, he entered into hire purchase agreement with the

complainant in respect of vehicle bearing registration

No.KA-16/2777 belonging to the accused. The accused

created hire purchase agreement in favour of the

complainant in respect of another vehicle bearing

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registration No.KA-17/5488 as he was told by the

complainant that on execution of hire purchase agreement,

funds will be released for body building of three chassis.

5. It is also contended by accused that though he had

created hypothecation in favour of UTI Bank Limited,

Bangalore at the instance of complainant, M/s.Durgambika

Clearing and Seizing Agency and Nayana Seizing Agency

have seized the vehicles. As a result, accused suffered loss

of Rs.3 Lakhs. At the time of getting the finance from UTI

Bank, the complainant had taken blank cheques from the

accused and one of the said cheques has been misused by

the complainant to file the instant complaint. There was no

legally recoverable debt from the accused. The accused has

contended that he had given blank cheque as security for

repayment of money under the aforestated hypothecation

agreement.

6. The learned trial judge on appreciation of evidence

has held that, dishonored cheque was issued by the accused

to discharge legally recoverable debt; the evidence adduced

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by accused is insufficient to rebut the presumption available

under Section 139 of the Negotiable Instruments Act. The

learned judge of the I-appellate court on reappreciation of

evidence has confirmed the findings of the trial court.

7. This court while exercising revisional jurisdiction

under Section 401 Cr.P.C., does not sit as a court second

appeal. This court can interfere with the impugned judgment

if the courts below have committed glaring errors in

appreciation of evidence or errors of law resulting manifest

injustice to petitioner/accused.

8. During cross-examination, the accused has

admitted that he had borrowed money from the complainant

in the year 2004. The accused had purchased a Lorry.

The accused had visited the office of complainant at

Davangere and executed necessary documents. He has also

admitted that he has paid several installments to the

complainant. He has also admitted that he had purchased a

Lorry and he has repaid loan to complainant by several

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installments. He has also deposed that he had repaid money

to UTI Bank through Sriram Transport Finance Company

Limited.

9. The learned counsel for petitioner would submit

that there was a tripartite agreement between UTI Bank,

complainant and the accused, therefore, there was no legally

recoverable debt and cheque was not supported by

consideration.

10. The learned counsel for complainant would

submit that M/s.Sriram Transport Finance Company

Limited was a franchisee of UTI Bank. In terms of loan

agreement (Ex.P11) dated 12.05.2004, UTI Bank has

authorized the complainant to recover money.

The contents of loan agreement dated 12.05.2004

would reveal that accused had availed loan of Rs.9,45,000/-

and agreed to repay total amount of Rs.10,82,484/- in 36

equal installments of Rs.30,069/- per month. The accused

has committed default in repayment of installments. In the

circumstances, the contention of accused that the cheque

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was not issued to discharge legally recoverable debt and the

blank cheque was obtained by the complainant cannot be

accepted.

11. The complainant has produced the Statement of

Accounts (Ex.P9), which would reveal that accused was

required to pay a sum of Rs.2,50,000/- to the complainant.

The contents of cheque marked as per Ex.P2 would reveal

that the accused had written the contents of the cheque and

he has signed the cheque. Therefore, the defense of accused

that he had issued a blank cheque to the complainant and it

has been misused by the complainant cannot be accepted.

The accused having contended that he had repaid the

entire amount to UTI Bank Limited through the complainant

has not produced documentary evidence in proof of

repayment of entire loan. Therefore, the contention of

accused that he had repaid the entire loan cannot be

accepted.
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12. The learned counsel for accused submits that

accused has discharged entire liability on 21.06.2006. The

learned counsel for accused referring to the contents of

‘B’ Register Extract (Ex.D2) would submit that entries in

relation to hypothecation of vehicles in favour of UTI Bank

Limited, Bangalore were cancelled on 21.06.2006, therefore,

accused has discharged entire liability.

13. It is the case of accused that vehicles which were

hypothecated by him were seized. In the circumstances,

after repossessing the vehicles, UTI Bank had to sell the

vehicles. Therefore, entries relating to hypothecation

agreement were cancelled. Above all, as per statement of

accounts furnished by the complainant, accused was due in

a sum of Rs.2,50,000/- as on 25.10.2006. In the statement

of accounts, the proceeds realized from the sale of vehicle is

shown as Rs.6,30,000/- and it has been given deduction by

the complainant. Therefore, cancellation of entries in the ‘B’

Register Extract (Ex.D2) cannot be a ground to hold that

accused had discharged entire liability.

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14. The courts below on proper appreciation of

evidence have recorded concurrent findings holding the

accused guilty of an offence punishable under Section 138 of

the Negotiable Instruments Act.

15. There are no reasons to interfere with the

impugned judgment. The Revision petition is dismissed.

Sd/-
JUDGE

Np/-