Herambha Leasing Limited, Rep. by Its Managing Director Sri C.S.J. Narasimhalu Vs. Smt. D.M. Lakshmamma W/O Sri K. Muniyappa - Court Judgment

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- [ k.n. keshavanarayana, j.] indian electricity act, 1910 - sections 39 and 44 - offences under - tampering electric meter - complaint - charges - order of acquittal on technical grounds -finding of the trial judge that the prosecution launched on the basis of the complaint lodged by p.w.4 who was not an authorised person in terms of section 50 of the act -scope of section 50 of the act - held, the prosecution launched on the basis of the complaint lodged by the official of the electricity board, who was working in the vigilance squad and who detected theft of electrical energy, was in fact a prosecution launched at the instance of the state or electricity board. - the prosecution launched at the instance of any official of the electricity board who detected the theft of electrical energy was in reality a prosecution launched at the instance of the electric supply company within the meaning of section 50 of the act - further held, in the case on hand also, p.w.4 is an employee of the k.p.t.c.l. working as an assistant executive engineer in the vigilance squad. - the prosecution launched on the basis of the complaint lodged by p.w.4 was in reality a prosecution launched at the instance of the k.p.t.c.l. therefore, the prosecution launched in this case was at the instance of one of the persons named in section 50 of the act, as such, it was competent. - under these circumstances, the court below is not justified in holding that the prosecution was not competent, therefore, the acquittal recorded on that basis is illegal and is liable to be set aside. - on facts, held, the learned trial judge accepted the evidence of p.w.s 1 to 4 and the finding recorded is justified - there are no grounds to differ from the said finding. in fact, the respondent/accused has not questioned the correctness of the said finding. - since the amendment of section 39 was subsequent to the detection of the offence in this case and also subsequent to filing of the charge sheet, the amended section cannot be applied to the case on hand. under these circumstances, the respondent/accused is required to be sentenced in terms of the unlamented section 39 of the act. - sentence is modified in terms unlamented section 39 of the act - indian electricity act, 1910 - section 50 - the phrase "at the instance" referred in the provision - discussed. (paras 12,13,14,15,16,18,19) criminal appeal is allowed.1. this appeal filed under section 378(4) of cr.p.c. by the complainant on obtaining special leave of this court is directed against the judgment arid order dated 16.12.2006 passed by the xx acmm mid xxii ascj, bangalore in c.c. no. 6299/2001 acquitting the respondent/accused for the offence under section 138 of the negotiable instruments act (hereinafter referred to as the 'n.i. act')2. on the private complainant filed by the appellant under section 200 of cr.p.c., the respondent was tried for an offence punishable under section 138 of the n.i. act. the accused pleaded not guilty for the accusation made against him. ultimately, after the trial, the learned magistrate by the judgment under appeal acquitted the, respondent/accused, ft is against this judgment, the present appeal is filed.3. upon service of notice of this appeal, though the respondent/accused appeared through his learned counsel, to-day learned counsel for the respondent has remained absent therefore, i have heard the learned counsel for the appellant and perused the records.4. in the facts and circumstances of the case, the point that arises for my consideration is, 'whether the learned magistrate is justified in acquitting the respondent/accused of the offence under section 138 of the n.i. act.?'5. the undisputed facts are that, the appellant is a leasing company carrying on business of lending money on securities. on 20.12.2000, the respondent availed a loan of rs. 3,57,000/- from the complainant on hypothecation of the bus bearing registration no. ka-02-a-2775 owned by her and also on the security of certain immovable properties. the accused agreed to repay the said loan amount in 25 equal monthly instalments of rs. 14,300/- each.6. it is the case of the complainant that the respondent/accused tailed to pay even single instalment as agreed and after a great deal of persuation, the. accused issued cheque bearing no. 038911 dated 07.01.2003 for a sum of rs. 4,96,000/- towards repayment of the loan amount due by tier with the interest and that when the said cheque was presented for encashment, the same was re tinned unpaid with the banker's endorsement dated 09.01.2003 'funds insufficient'. thereafter, according to the complainant, a legal notice dated 21.01.2003 was issued to the accused informing her about the return of the cheque and also calling upon her to pay the amount covered under the cheque. however, in spite of service of notice, the accused failed to pay the amount, as such, she has committed offence under section 138 of the act. the manager of the complainant -company was examined as pw. 1, wherein, he reiterated the case of the complainant as averred in the complaint. he was cross-examined at length by the accused. in defence, the accused examined herself as dw. 1. as could be seen from the tenor of the cross-examination of pw. 1 and the examination -in -chief of dw. 1, though die accused admitted-having borrowed the loan from the complainant, it was her defence that as agreed she paid all the instalments on the respective due dates and she has discharged the entire amount, as such. no amount was due by her to the complainant, it was her further defence that at the time of lending money, the complainant apart from securing hypothecation of the bus owned by her and also getting the title deeds of the properties of her husband and keeping them as security, also insisted and obtained from her signed blank cheque as security and even though she discharged the entire loan amount, the complainant failed to return the title deeds and the cheque and finally the signed blank cheque has been misused by the complainant by filling up the amount and presenting the same for encahshment. thus, according to her, she was not due any amount and that the cheque in question was not issued on 07.01.2003 towards discharge of the alleged debt and therefore, she has not committed any offence under section 138 of the n.i. act.7. after healing both sides, the learned magistrate, as noticed above, holding that the conduct of the complainant in not. taking any steps when the accused alleged to have failed to pay the instalments would highly probablises the theory of the defence that she had repaid all the instalments and in that view of the matter, the learned magistrate held that the presumption under section 139 of the n.i. act has been satisfactorily rebutted by the accused, as such, she is entitled for an order of acquittal.8. pw. 1 during his evidence has admitted that though the accused did not repay the amount, as agreed by instalments, no action was taken against her immediately and no notice was issued to her calling upon her to pay the entire amount, on the ground of default of paying instalments nor any step was taken to repossess the bus, which was hypothecated to the complainant as security for repayment of the money. the complainant is a finance company and at the, time of lending, it had taken ail precautions to get the security so as to secure the repayment of the money. in these circumstances, whenever the lonee commits default in payment of instalments agreed, as a prudent business organisation, the complainant ought to have issued a notice to the accused reminding her about the default and ought to have demanded payment of the-entire amount by recalling the loan and also steps should have been taken to enforce the security. the very fact that m spite of alleged nonpayment of instalments- 1 to 25, the complainant did not take any action in this behalf would certainly raises great amount of suspicion about the lonee becoming defaulter. no doubt, having regard to the facts and circumstances, of the case, presumption under section 139 of the n.i. act would be available to the effect that the complainant has received the cheque towards discharge of debt, or other liability. the receipt of the loan amount from the complainant is not disputed by the accused and she has only pleaded that she has repaid the entire amount.9. it is well-settled law that the accused is not required to prove his/her defence beyond ail reasonable doubt as is required to be done by the prosecution/complainant, as the case may be. it is sufficient, if the accused brings out circumstances or places evidence to probablise his/her defence. the standard of proof regarding defence in criminal cases is only that of preponderance of probabilities. to probablise the defence, it is also not necessary for the accused to enter the witness box. however, in the case on hand, the accused has entered the witness box and has asserted her defence that, she had repaid the entire amount and the cheque in question had been issued at the time of availing loan as blank cheque. therefore, to find out as to whether the presumption available under section 139 of the n.i. act has been rebutted or not, the court is required to look into the entire circumstances brought out on record including the conduct on the part of the complainant which may throw light on this aspect of the matter. as noticed above, admittedly, no action was taken against the accused though according to the complainant not even a single instalment, was paid. it is highly difficult, to believe that the finance company would keep quiet without taking any action against the person who has committed default in payment of the instalments after borrowing huge amount of rs. 3,50,000/-. the inaction on the part of the complainant in not taking any steps in this behalf is a strong circumstance to indicate that the defence of the accused is highly probable and this circumstance is sufficient to indicate that the presumption against the accused has stood rebutted. it also probablises the defence theory that the cheque in question was not issued on 07.01.2003 as sought to be made out by the complainant, but on the other hand, it was issued on the date of borrowing the loan amount. it is an admitted fact that ex.p12 is a ledger account extract issued by the complainant. the perusal of ex.p12 shows that, the appellant/complainant-finance company is in the habit of collecting cheques from borrowers/creditors apart from other securities at the time of lending money. in ex.p12 a separate column is provided for mentioning the details of the cheques. therefore, the defence theory that the blank cheque had been delivered to the complainant as demanded by the complainant at the time of lending money cannot be rejected. no doubt, as admitted by the accused during her cross-examination, she has not produced any documentary evidence to show that she had repaid the instalments and that she has not obtained any receipt from the complainant for having paid the amount every month. nevertheless, it is her specific stand that the repayment of the amount was being noted in the pass book issued by the complainant and after the discharge of the entire amount when she demanded the complainant to return the title deeds and also the blank cheque, the complainant played a trick by asking her to deliver the pass-book for verification and accordingly, she delivered the pass book, but it was not returned by the complainant. there is nothing in the cross-examination of dw. 1 to disbelieve this contention. nevertheless, the conduct of the complainant in not taking any steps even after the default alleged to have been committed by the accused; has been rightly considered by the court below as a circumstance to accept the defence, theory. therefore, i am of the opinion that the court below is justified in holding that the complainant has failed to prove the offence charged against the accused. i see no error committed by the court, below in acquitting the accused. there are no grounds to interfere with the judgment of the court below. the appeal lacks merit.accordingly, the appeal is dismissed.