Telangana High Court
CRLA/778/2011 of M/S.SHRIRAM TRANSPORT FINANCE CO.LTD., WARANGAL, WARANGAL DT Vs B.THIRUPATHI REDDY, KARIMNAGAR AND ANR, REP. BY P.P.,HYDERABAD on 28 December 2018
Dr. JUSTICE SHAMEEM AKTHER CRIMINAL APPEAL No.778 of 2011 JUDGMENT: This Criminal Appeal, under Section 378(4) of the Code of Criminal Procedure, 1973, is filed by the appellant/complainant, challenging the judgment, dated 16.08.2010, passed in Criminal Appeal No.139 of 2008 by the
THE HON’BLE Dr . JUSTI CE SHAMEEM AKTHER
CRI MI NAL APPEAL No.7 7 8 of 2 0 1 1
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JUDGMENT:
This Criminal Appeal, under Section 378(4) of the Code of Criminal Procedure, 1973, is filed by the appellant/ complainant, challenging the judgment, dated 16.08.2010, passed in Criminal Appeal No.139 of 2008 by the Special Sessions Judge for SC/ ST Cases-cum-VII Additional Sessions Judge at Warangal, whereby, the conviction and sentence recorded against the 1[st] respondent herein/ accused for the offence under Section 138 of the Negotiable Instruments Act, 1881, by the I Additional Judicial Magistrate of First Class, Warangal, vide judgment, dated 26.11.2008, passed in C.C.No.835 of 2007, was set aside.
2 . Heard the learned counsel for the appellant/ complainant, the learned Additional Public Prosecutor representing the 2[nd] respondent-State and perused the record. Despite listing this matter under the caption ‘For Orders’, there is no representation on behalf of the 1[st]respondent/ accused. The appeal is of the year 2011. Hence, this appeal can be disposed of on merits basing on the material on record, without waiting for the learned counsel for the 1[st]respondent/ accused to advance arguments.
3 . The learned counsel for the appellant/ complainant would submit that there is a hypothecation agreement between the appellant/ complainant and the 1[st] respondent/ accused for purchase of Ashok Leyland Vehicle Model No.2006 bearing registration No.AP-15-X-2487, vide agreement No.STFC/ KNG/ 24816, for a total agreement value of Rs.10,50,930/ - payable in 45 monthly instalments @ Rs.23,354/ - commencing from 28.02.2006. There is also other documentary evidence on record to substantiate the dishonour of Ex.P.1-original cheque bearing No.690523, dated 19.02.2007, issued by the 1[st] respondent/ accused in favour of the appellant/ complainant towards the instalments due to the appellant/ complainant. There is also ample evidence on record to substantiate that when the said cheque was presented in the bank for payment, it was dishonoured for want of sufficient funds in the account of the 1[st] respondent/ accused. There is also ample evidence on record to establish the appellant/ complainant complied with the mandatory requirements under Section 138 of the Negotiable Instruments Act, 1881, before filing the Calendar Case before the trial Court. The Court below erroneously allowed the appeal by setting aside the conviction and sentence recorded by the trial Court against the 1[st] respondent/ accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and ultimately prayed to set aside the judgment under challenge and restore the judgment passed in the Calendar Case by the trial Court.
4 . In view of the above submissions, the points that arise for determination in this appeal are as follows:
1 . W h et h er t h er e is an y legally en for ceable debt or liabilit y pay able by t h e accu sed t o t h e com plain an t ? liabilit y pay able by t h e accu sed t o t h e com plain an t ?
2 . W h et h er t h e j u dgm en t of t h e Cou r t below is liable t o be con fir m ed/ set aside? be con fir m ed/ set aside?
3 .To w h at r esu lt ?
-Poin t No.1 :
5 . The specific defence set up by the 1[st] respondent/ accused is that there was no hypothecation agreement between him and the
appellant/ complainant for purchase of Ashok Leyland Vehicle Model No.2006 bearing registration No.AP-15-X-2487, vide agreement No.STFC/ KNG/ 24816, as contended by the appellant/ complainant. The 1[st] respondent/ accused also denied that he paid Rs.88,261/ - towards three instalments for purchasing of the subject vehicle. Though the appellant/ complainant got marked Ex.P.1 cheque said to have been issued by the 1[st] respondent/ accused in his favour to substantiate his case, the material document, i.e., the hypothecation agreement is not filed. So, non filing of the Hypothecation Agreement goes to the root of the matter and the other material placed on record would not establish that there was any legally enforceable debt or liability between the parties to the litigation with regard to the purchase of the Ashok Leyland Vehicle Model No.2006 bearing registration No.AP-15-X-2487. This aspect was elaborately dealt with by the appellate Court, which was completely ignored by the trial Court. The findings of the Court below on this point are based on evidence and record. There is nothing to take a different view. This point is answered in favour of the 1[st] respondent/ accused and against the appellant/ complainant.
-Poin t Nos.2 an d 3 :
6 .The findings of the Court below are in consonance with the evidence on record. There is nothing to take a different view. There is no infirmity in the judgment under challenge. The appeal is devoid of merit and is liable to be dismissed.
7 . In the result, the appeal is dismissed, confirming the judgment, dated 16.08.2010, passed in Criminal Appeal No.139 of 2008 by the Special Sessions Judge for SC/ ST Cases-cum-VII Additional Sessions Judge at Warangal.
Pending Miscellaneous Petitions, if any, shall stand closed.
28[th] December, 2018 Bvv
______________________ Dr . SHAMEEM AKTHER, J