Dismissed

Npr Finance Ltd. v. P.S.Haneefa

Kerala HC5 Mar 2013CRL.A/983/2009

Case brief

AI extract

What is this about?

In an appeal against an acquittal under Section 138 NI Act, the Kerala High Court upheld the trial court's decision. The court found the complainant failed to prove the accused had a contractual obligation or legally enforceable debt liability to the financier, as the accused was not a party to the original hire purchase agreement.

What did the court decide?

The criminal appeal was dismissed, and the order of acquittal in the trial court was upheld.

Npr Finance Ltd. Vs P.S.Haneefa — Cheque Dishonour | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934

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CRL.A.No. 983 of 2009 (C)

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ST.1356/2005 of J.M.F.C.-IV, KOCHI DATED 25-02-2009

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APPELLANT(S)/COMPLAINANT:

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NPR FINANCE LTD., 41/1787, CHITTOOR ROAD, KOCHI-18, REPRESENTED BY BRANCH MANAGER E.NARAYANAN S/O.EASWARAN, AGED 35, 41/1987 CHITTOOR ROAD, KOCHI-18.

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BY ADV. SRI.S.SREEKUMAR

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RESPONDENT(S)/ACCUSED:

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1. P.S.HANEEFA, ANAGHAMAHAL, SUBHASH NAGAR P.O., CHALAKUDY.

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2. THE STATE OF KERALA, REPRESENTED BY THE

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PUBLIC PROSECUTOR.

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BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) SRI.N.SURESH, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.983 of 2009

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Dated this the 5^th day of March, 2013.

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J U D G M E N T

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The complainant in a prosecution for the offence

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punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since it is aggrieved by the judgment dated 25.2.2009 in S.T.No.1356 of 2005 of the court of Judicial

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First Class Magistrate-IV, Kochi, by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

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The case of the appellant is that it is a financial institution engaged in the business of hire purchase of motor vehicle and the complainant entered into a hire purchase agreement with one Mr.Sreekumar as the hirer and one C.R.Sivaraman and P.P.Ayyappa were the guarantors. Ext.P2 is the hire purchase agreement with

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Crl.A.No.983 of 2009

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respect to the vehicle bearing registration no.TN-31/V-4225 (1995 model Ashok Leyland bus). The further case of the complainant is that the accused is the present possessor of the vehicle and towards the discharge of the monthly hire amount and expenses, the accused had executed and issued Ext.P6 cheque for `4,62,955/-, which when presented for encashment dishonoured due to insufficiency of fund in the account maintained by the accused and the accused has not repaid the amount covered by the dishonoured cheque, inspite of a statutory notice served on him and thus the accused has committed the offence punishable under section 138 of the NI Act.

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During the trial of the case, PW1 was examined from the side of the complainant and produced Exts.P1 to P11 documents. No evidence either oral or documentary adduced from the side of the defence. The trial court finally concluded that Ext.P6 cheque is not enforceable against the accused for want of contractual of obligation and the court

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Crl.A.No.983 of 2009

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below accepted the explanation of the accused as to how his cheque happened to be in the possession of the complainant. Thus, accordingly the court below found that the accused is not guilty of the offence under section 138 of the NI Act and thus he is acquitted under section 255(1) of Cr.P.C. It is the above finding and order of acquittal challenged in this appeal.

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I have heard Adv.Sri.S.Sreekumar learned senior counsel for the appellant and Adv.Sri.Abraham Mathew learned counsel for R1.

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Learned counsel for the appellant vehemently submitted that the findings of the court below that there is no privity of contract between the complainant and the accused, is absolutely irrelevant and incorrect and as far as section 138 of the NI Act is concerned, an offence would be attracted, if the cheque dishonoured which was executed and issued by the drawer, after undertaking the liability of the hirer. It is the further submission of the counsel for the

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Crl.A.No.983 of 2009

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appellant that though the hire purchase agreement was between the complainant and one Sreekumar, the accused was the possessor of the vehicle in question and when the complainant tried to repossess the vehicle, the accused volunteered to undertake the liability and towards the discharge of such liability, he issued Ext.P6 cheque and the said fact is further supported by Ext.P5 letter issued by the accused. Thus according to the learned counsel, the findings of the court below are against the facts and circumstances involved in the case. On the other hand, counsel for the respondent strenuously submitted that the trial court is fully justified in its finding, since the complainant has miserably failed to prove the liability of the accused who allegedly issued Ext.P6 cheque and the court below has approved the probable case of the accused as to how Ext.P6 cheque reached in the hands of the complainant. Thus according to the learned counsel, the appellant has miserably failed to make out a prima facie

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Crl.A.No.983 of 2009

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case in support of its challenge against the findings of the court below and therefore the appeal is liable to be dismissed.

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I have carefully considered the rival contentions advanced by the counsel for the appellant as well as the respondent. Considering the contentions raised by the counsel for the appellant, by order dated 8.8.2012, this Court directed the Registry to make available the LCR and thus I had an occasion to go through the evidence and materials on record.

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In the light of the arguments advanced by counsel for the appellant and the respondent, and in the light of the evidence and materials on record, the question to be considered is whether the appellant has succeeded in making out a prima facie case in support of its challenge against the findings of the court below and the order of acquittal recorded by the trial court in favour of the accused. Admittedly, hire purchase agreement was

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Crl.A.No.983 of 2009

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between the complainant and one Sreekumar, who is the hirer. In Ext.P2 agreement, the accused is not a party. The only case put forward by the complainant in the complaint is to the effect that, the accused is the present possessor of the vehicle in question and towards discharge of the monthly hire amount and the expenses, the accused issued Ext.P6 cheque. The specific defence advanced by the accused, particularly during his 313 examination, is to the effect that he has not availed any financial assistance from the complainant company and he used to canvass business in favour of the complainant for which he had received attractive commissions from the complainant. It is also his version that during such transaction, he used to act as broker or guarantor and during such transaction, the complainant used to obtain blank cheques as well as documents from himself and guarantors arranged by him. Thus according to the accused, Ext.P6 cheque was given in blank form in favour of the complainant during such

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Crl.A.No.983 of 2009

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transaction. The accused has also denied Ext.P5 letter and its contents. The learned Magistrate has considered the case of the complainant, in the above backdrops of the defence taken by the accused.

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Though I have repeatedly gone through the averments in the complaint and in the proof affidavit, I failed to understand the case of the complainant fixing liability upon the accused, who allegedly issued Ext.P6 cheque. As I indicated earlier, the only averment and claim in the complaint is that the accused is the present possessor of the vehicle in question and he issued Ext.P6 cheque in discharge of the liability connected with the vehicle. In this juncture it is relevant to note that the complainant is a financial institution and the complainant was also in possession of Ext.P2 hire purchase agreement. But I failed to understand why the complainant failed to reduced into writing an agreement with the accused, regarding the liability undertaken by the accused, if the version of the

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Crl.A.No.983 of 2009

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complainant is true that the accused volunteered to undertake the liability, when the complainant attempted to to repossess the vehicle. The learned Magistrate has already found that the wordings contained in Ext.P5, do not show the contractual obligation as per Ext.P5 and the accused became in possession of the vehicle much prior to Ext.P5 letter. There is no pleading or evidence to the effect that the vehicle was given in possession to the accused as per any document in writing or with the consent of the complainant who is the financier at the instance of the hirer. Thus it can be seen that the complainant has no definite and specific case supported by any legally acceptable documentary evidence, as to how the accused indebted to the complainant or how the accused is liable to discharge the liability connected with the hire purchase agreement between the complainant and the original hirer with respect to the vehicle in question. So, absolutely there is no evidence to show that any legally enforceable debt or

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liability is due to the complainant from the accused. In this juncture it is relevant to note that as correctly observed and found by the learned Magistrate, Ext.P6 shows that the contents are written using one pen and signature is written using another pen and therefore it cannot be said that the observation of the learned Magistrate that possibility of issuing blank signed cheque appears to be probable, is incorrect or unfounded.

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In this juncture it is relevant to note that the complainant has no case either in the complaint or in the proof affidavit that, the accused stood as a guarantor or he was an agent/broker or promoter for the business of the complainant. But during the cross examination of PW1, he had admitted that the accused has introduced some of the customers and the accused himself is a broker. The above admission of PW1 during his cross examination, though not stated either in the complaint or in the proof affidavit, further reinforce the probability of the case of the accused

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Crl.A.No.983 of 2009

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that Ext.P6 cheque was obtained from him by the complainant while he was acting as broker of the complainant.

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In the light of the above discussion and the evidence and materials referred to above it can be seen that the trial court is fully justified in its finding that Ext.P6 cheque is not enforceable against the accused for want of contractual obligation. According to me, the defence has succeeded in explaining as to how Ext.P6 cheque reached in the hands of the complainant. The complainant has miserably failed to prove the liability of the accused which allegedly due to the complainant and further the complainant has failed to show that Ext.P6 cheque was issued towards the discharge of any such legally enforceable debt. Hence, according to me, going by the judgment of the trial court it can be seen that the findings of the court below are supported by evidence and materials on record and the same are acceptable for the cogent and

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acceptable reasons assigned by the learned Magistrate. Hence it cannot be said that those findings of the trial court are perverse or illegal. Therefore, the appellant has miserably failed to make out a prima facie case in support of his challenge against the findings of the court below. Hence, even if this appeal is entertained any further, there is a little scope for interference with the findings of the court below and the order of acquittal recorded in favour of the accused. The Honourable Apex Court in a recent decision reported in Pudhu Raja and another Vs. State {(2013) 1 SCC (Crl) 430} has held that, “The Appellate court can interfere only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse. The Appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of innocence”. On consideration of the facts and circumstances involved in the case in the light of the

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dictum laid down in the above decision, I am of the view that, the appellant has miserably failed to show that the findings of the trial court are perverse or illegal and in making out any prima facie case in support of its challenge against the judgment of the trial court. Therefore, the appeal fails and accordingly the same is dismissed.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Npr Finance Ltd. v. P.S.Haneefa

Case brief

What is this about?

What did the court decide?

Npr Finance Ltd. v. P.S.Haneefa

Case brief

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What did the court decide?

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