IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: March 11, 2010 1. Criminal Miscellaneous Appeal No.453-MA of 2008 M/s Shareen Hire Purchase Private Limited .....APPELLANT(S) VERSUS Tarsem Lal .....RESPONDENT(S) . . . 2. Criminal Miscellaneous Appeal No.467-MA of 2008 M/s Shareen Hire Purchase Private Limited .....APPELLANT(S) VERSUS Tarsem Lal .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Mandeep Singh Sachdev, Advocate, for the appellant. Mr. Rajiv Joshi, Advocate, for the respondent. . . . AJAI LAMBA, J (Oral) This shall dispose of two cases viz. Criminal Miscellaneous Appeal No.453-MA of 2008 and Criminal Miscellaneous Appeal No.467-MA of 2008. Both the cases are between same parties, Crl. Misc. Appeal No.453-MA of 2008 [2] however in context of different cheques. The pleadings on behalf of the parties are same. For reference to the record, file of Criminal Miscellaneous Appeal No.453-MA of 2008 is being taken up. This petition has been filed in challenge to Judgment dated 26.3.2008 rendered by the Judicial Magistrate Ist Class, Jalandhar. It transpires that the petitioner filed a complaint for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 against Tarsem Lal (respondent) with the allegation that the complainant is engaged in the business of hire purchase. In October 1997, Joga son of Amar Chand approached the complainant for purchase of three wheeler on hire purchase basis. Three wheeler bearing No.PB-08N-9732 was purchased by the said person and total money advance was Rs.1,25,000/- under hire purchase agreement dated 25.10.1997. Tarsem Lal, respondent, stood as guarantor for repayment of hire purchase agreement. Since Joga failed to pay hire purchase money to the complainant, therefore, the respondent was approached to make the payment of outstanding amount. The respondent being the guarantor, allegedly, furnished a cheque of Rs.1,25,800/- towards the outstanding amount Crl. Misc. Appeal No.453-MA of 2008 [3] which was presented, however, was dishonoured for the reason of insufficient funds. After completion of formalities, the complaint was filed. The stand taken by the accused is that the amount had already been repaid, however, the complainant had manipulated the record. Joga was an illiterate person and benefit of that fact had been taken. There are as many as 12 cases in which different amounts are shown to have been received from Joga. A civil suit had been filed. In cross-examination in civil suit, the complainant admitted that there were only two hire purchase agreements; one for sugar cane crusher and the other for three wheeler, however, 12 cases had been shown and 36 receipts. Corresponding entries in the statement of accounts, however, were not available. In defence, the respondent-accused examined Nirmal Kapoor, Clerk, DTO Office, Jalandhar, who stated that as per record, the vehicle was purchased by M/s Shareen Private Limited and there is no hire purchase agreement as per record in favour of Joga. No dues certificate had also been issued. Be that as it may, the issue has been considered by the Trial Court in Para 11 Crl. Misc. Appeal No.453-MA of 2008 [4] wherein the following has been concluded:- “11. After considering the facts and circumstances of the case, it is clear that present complainant company can only deal with finance hire purchase agreement and except for hire purchase agreement of sugar cana crasher and three wheeler, no other case has been pointed out where the company extended hire purchase agreement in favour of Joga. Whereas the receipts show that there were 12 different numbers of cases in which receipts were issued by the complainant company. The record which was produced on record regarding name of the hirer, nature of loan and receipts clearly show that regular amount was being deposited by Joga. I failed to understand that in what capacity Iqbal Singh got executed an agreement to sell in his favour, if company was only authorized to deal with general public in hire purchase agreement. The other 10 cases regarding which receipts have been issued relating to the year when vehicle was taken in possession at the initial stage, value of the three wheeler was shown to be more than one lac. Whereas the value of new vehicle at that time was not more than Rs.40,000/-. It appears that Tarsem Lal stood guarantor for repayment of loan of Joga and hire purchase agreement and some documents have been manipulated to make him liable for hire purchase agreement. Whereas disproportionate value of the vehicle was reflected. Proper account was not maintained by the complainant company. 12 different cases remained unexplained in which receipts were issued, in possession of the company and execution of 12 cases, execution of agreement to sell, non explanation of period during which the vehicle remained in possession of company twice, the under value sale of vehicle and non inclusion of amount in the account clearly speaks that regular account was not being maintained. Complainant company took the advantage of illiteracy of Joga and despite having received amount, same was shown relating to different cases and complainant fails to pin point even single case relating to which hire purchase agreement was executed except sale of three wheeler and sugar cane crasher. These reasons are sufficient to disbelieve that the amount was due. The account was not audited by the auditor and no audit report has been placed on the record to show that the account of company was subjected to regularly audit. To rule out the possibility of manipulations, onus was not discharged by the complainant sufficiently to establish the execution of hire purchase agreement and that regular account was being maintained. I, therefore find that accused is not a guilty and therefore acquit him for the offence of 138 of N.I. Act. File be consigned to the record room.” Learned counsel for the petitioner has not been able to show that any relevant piece Crl. Misc. Appeal No.453-MA of 2008 [5] of evidence has been either ignored or some evidence has been perversely read. Considering the facts and circumstances, I find no reason to differ from the conclusion drawn by the Trial Court. The appeals are dismissed. (AJAI LAMBA) March 11, 2010 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?