New Jagdambay Finance Corporation vs Man Singh

Sureshwar Thakur, J.

1.The complainant/appellant herein, is aggrieved, by the judgement of acquittal pronounced by the learned Judicial Magistrate 1st Clas, Court No. III,

Una, District Una, H.P. upon Cr. Complaint No. RBT-114-II-06/-2 on 22.09.2007, hence has instituted therefrom the instant appeal before this Court.

The facts relevant to decide the instant case,

(i) are of the respondent/accused, under, a hire purchase agreement executed inter se him and the complainant, hence acquiring possession, of, vehicle

bearing No. HIB-0695. (ii) In purported discharge of his liabilities, towards loan installments, vis-a-vis the complainant, the accused issued cheque

borne in Ex.C- 1 vis-a-vis the complainant. However, on its presentation before the bank concerned, it, for want of funds in the account(s) of the

accused, was hence refused to be honoured. The apposite memos reflecting the factum of insufficient funds existing, in, the account(s) of the

accused, are, borne in Ex.C-2, and, in Ex. C-3. Consequently, the complainant issued a notice borne in Ex. C-4, vis-a-vis the accused, and, with the

accused/respondent herein despite, expiry of the statutory period, rather omitting to liquidate the amount, borne in Ex. C-1, hence, constrained the

complainant to institute a complaint, before, the Magistrate concerned.

The learned trial Court, on, finding sufficient material on record, to proceed against the accused, hence, issued notice to the accused. On his

appearance before the learned trial Court, notice of accusation for his committing an offence punishable under Section 138 of the Negotiable

Instruments Act, stood put to him. In proof of the case, the complainant examined three witnesses. On conclusion of recording of the complainant's

evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein he

claimed innocence and pleaded false implication. However, he has examined two witnesses in his defence.

On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.

The complainant is aggrieved by the judgment of acquittal recorded in favour of the accused/respondent, by the learned trial Court. The learned

counsel appearing for the complainant/appellant herein, has, concertedly and vigorously contended qua the findings of acquittal recorded by the learned

trial Court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by

it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate

jurisdiction, and, theirs standing replaced by findings of conviction.

On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, contended qua the

findings of acquittal recorded by the learned trial Court, rather standing based on a mature and balanced appreciation by him, of the evidence on

record, and, theirs not necessitating any interference, rather theirs meriting vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on

record.

The learned trial Court, on consideration, of the material, and, evidence adduced before it, has concluded, (a) of Ex.C-1 being not issued by the

accused vis-a-vis the complainant, in discharge of the  formers' liability(ies) vis-a-vis the latter, (b) nor its issuance being towards, any, legally

recoverable debt or towards any other legally recoverable liability(ies) from him, by the complainant, (c) rather it being issued only as a security, (d)

hence, with the Hon'ble Apex Court in a judgment reported in 2006(3) CCC 665 (S.C.), rather expostulating, qua upon, a negotiable instrument being

evidently issued only as a security, thereupon, on its issuance, it not falling within the domain of Section 138, of the Negotiable Instruments Act

(hereinafter referred to as the Act), (e) hence, the learned trial Court, on anvil, of evidence inconsonance therewith rather existing on record, made a

conclusion, of, the presumption embodied in Section 139 of the Act, provisions whereof of stand extracted hereinafter: “139. Presumption in favour

of holder.â€"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section

138 for the discharge, in whole or in part, of any debt or other liability.†qua the holder of a cheque, receiving, it in discharge of any debt or other

liability, thereupon, also standing rebutted, in sequel,whereto it pronounced an order of acquittal upon the accused.

The efficacy(ies) of aforesaid inference(s), and, of conclusion(s) drawn, by the learned trial court, upon its construing the import, of the provisions,

respectively, borne in Section 138, of the Act and in Section 139 of the Act, (a) wherein it is explicitly mandated, that, “unless†cogent evidence is

adduced, in display of the negotiable instrument concerned, being not issued by the accused, only as a security vis-a-vis the complainant, (b) thereupon,

the presumption, of it, being issued by the accused vis-a-vis the complainant, in discharge of his legally recoverable debts, “ rather hence, holding

forceâ€, (c) whereupon the accused hereat, given, adequate evidence existing in rebuttal thereof, being construed to stand rather rendered

unamenable to face the penal consequence thereof, are also hence, enjoined to be gauged, by alluding to evidence germane thereto.

The accused/respondent herein, for succoring, his espousal of Ex. C-1 being issued, only as security towards the complainant, and, in pursuance to

a hire purchase agreement being entered qua the apposite vehicle inter se him, and, the complainant, and, it being not issued in discharge of his loan

liability(ies), thereagainst vis-a-vis the complainant, had depended upon the testification of DW-1, (a) who in his examination-in-chief, unequivocally

echoes of Ex. C-1, being delivered blank, to the complainant, and, only as a security. However, upon the counsel for the complainant, holding DW-1 to

cross-examination, he apparently omitted to mete any apposite dis-affirmative suggestion(s) to him, for his hence concerting to bely the aforesaid

echoing(s), borne in the examination-in-chief of DW-1, qua Ex. C-1 being issued only as a security, to the complainant firm. Want of apposite dis-

affirmative suggestion(s), being put, by the counsel for the complainant, while holding DW-1 to cross-examination, pointedly qua the facet aforesaid,

(b) whereupon, alone the aforesaid echoing(s) may stand belied, (c) rather fillips an inference of the complainant hence acquiescing, to the issuance of

Ex.C-1 by the accused, to the complainant, being only as a security, than its being issued towards liquidation of the apposite loan installment(s). In

sequel, the further corollary thereof, is that all the inferences drawn therefrom, by the learned trial Magistrate, qua hence, the mandate expostulated in

2006(3) CCC 665 (S.C.), standing attracted, and, carrying weight hereat, (c) especially when in consonance therewith cogent evidence exists on

record, evidence whereof graphically displays of the relevant negotiable instrument being issued, not, for liquidation of loan installment(s) nor for

liquidating any legally recoverable debt or any other liability, rather it being evidently issued, only, as a security, (d) thereupon, the penal consequences

arising from the dishonour of the negotiable instrument remaining unattracted vis-a-vis the accused.

Furthermore, DW-2 in his testification has also voiced, that on 11.11.2001, the complainant along with 4 to 5 persons hence arriving at the Truck

Union, and, carrying away the vehicle concerned, and, upon the accused asking the complainant to return the cheques, the latter refusing. The

aforesaid echoing also remains unbelied. Jagdish Ram, the complainant's witness, has testified, of the relevant documents appertaining, to the hire

purchase agreement, being available with the complainant firm, and, has acquiesces, to a suggestion, of, his being disabled, to orally testify with respect

to the exact outstanding loan amount(s), recoverable by the complainant, from the accused. Apparently, hence with the complainant firm, not,

formidably through its witnesses, hence, making any articulation of its not maintaining any account(s) with respect to the borrowings, made by the

accused, (i) thereupon, it is impliedly inferable therefrom, of, despite all the relevant record, qua the remaining recoverable purportedly borrowed loan

amount(s), or qua the legally recoverable, by it, from the accused, “though†standing maintained by it, yet its omitting to produce, the relevant

record, whereas, only on production thereof, it would evidently bespeak qua the outstanding loan liability, of the accused, towards it. (ii) Nonetheless,

omission of its production, contrarily, nails a conclusion, of, withholding(s) thereof, rather rendering open an adverse inference being drawable against

the complainant, and, also an inference, being being drawable, of, the amount borne in Ex.C-1, not appertaining, to any legally recoverable outstanding

loan amount, borrowed by the accused from it nor it constituting any legally recoverable liability, (iii) besides upon conjoining the aforesaid inferences,

with, the unrebutted testifications of DW-1, wherein, he voices, of the accused delivering Ex.C - 1, only as a security to the complainant, rather

formidably enables this Court, to erect, clinching inferences of (a) the accused proving, of the amount borne in Ex.C-1 being not a legally recoverable

debt; (b) it being proved of it being issued only as a security by him, to the complainant; (c) thereupon, the application, by the learned trial Court of the

mandate of the Hon'ble Apex Court, expostulated in 2006(3) CCC 665 (S.C.), being construable to be befitting, as well as, legally apt.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in

a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from a gross

perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

Consequently, therein no merit in the instant appeal and it is dismissed. In sequel, the impugned judgment is affirmed and maintained. All pending

applications also stand disposed of. Records be sent back forthwith.