Bangalore District Court
Mr. Ajit Y. Vishwanath vs Mr. Vishwanath M.S on 8 April, 2021
1
CC.No.58698/2018
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL
UNIT, BENGALURU
: PRESENT :
M.Vijay, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 8TH DAY OF APRIL, 2021.
C.C.No.58698/2018
COMPLAINANT : Mr. Ajit Y. Vishwanath
S/o Vishwanath Y.R
Aged about 35 years,
Residing at No. 355, 9th Main,
25th Cross, Banashankari II Stage,
Bengaluru560070.
.Vs.
ACCUSED : Mr. Vishwanath M.S
S/o Mr. Murthy,
Aged about 35 years,
Bagamane WTC, Mahadevapura,
K.R. Puram, Outer Ringroad,
Bangalore560016.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2CC.No.58698/2018
2. The brief facts of the case are as follows: The complainant has averred that, accused is his friend had approached him for loan of sum of Rs.5,50,000/, due to friendship by raising loan from HDFC and LIC, he advanced sum of Rs.5,50,000/ to the accused, on receipt of it, accused assured him to repay it with an interest of Rs.45,000/ in 12 installments of Rs.50,000/, he paid it with the assumption that the accused would repay it promptly, however, the accused defaulted many times in repaying the amount so, left with no option he demanded the accused to repay it through SMS, Whats App messages, email and phone calls, but that accused intentionally had avoided him and failed to respond to his call, accordingly he approached Banashankari Police Station with an intention to filed complaint against the accused, but, the accused and wife of the accused Rekha Shalini assured him to repay the amount and issued cheques by executing letter of indemnity and guarantee in his favour on 03.07.2017. Accordingly, he did not file the complaint.
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3. Further, it is alleged that, accused has issued cheaque bearing 000027 drawn on HDFC Bank for Rs.1,09,741/ dated 30.09.2017 as agreed in the letter of indemnity and guarantee to clear the part of the due in his favour, based on it, he presented it in his banker HDFC bank CMH road Indiranagar, but it was returned unpaid with the shara that "Funds Insufficient" in this regarding his banker issued memo dated 17.11.2017, immediately he caused legal notice to the accused calling upon him to pay the cheque amount on 08.12.2017 through RPAD to 5 different addresses of the accused, same was served on the accused to the 2nd address mentioned in the legal notice as well as cause title, accused refused to receive the notices sent to other addresses, despite of service, the accused neither replied to his notice nor paid cheque amount. Accordingly, the constrained to file the complaint to punish the accused for an o/p/u/s 138 of N.I. Act.
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4. In pursuance of summons the accused appeared through his advocate, plea was recorded, he pleaded not guilty and claims to be tried. The complainant to prove his case got examined himself PW1 and placed reliance on ExP.1 to P.16 Upon closure of evidence the accused was examined U/Sec. 313 Cr.P.C. he denied incriminating material on record and accused examined himself as DW1, and placed reliance on Ex.D1 to Ex.D5.
5. Heard both the sides, both the counsels have failed there separate written arguments, the complainant counsel has argued that, accused has admitted the existence of financial transaction with the complainant, cheque and signature there on also admitted, though the accused alleged to have obtained the Ex.P.1 cheque and Ex.P.9 forcibly in Banashankari Police Station, but nothing has produced on record to prove the allegation to that effect, accordingly, he prayed to draw presumption in favour of the complainant and claims that 5 CC.No.58698/2018 accused failed to rebut the presumption, the complainant has complied the provisions of 138 (a) to (c) of N.I. Act, in support of his argument he relied upon AIR 2019 SC 1983, Krishna Rao V/S Shankeregowda, Kumar Exports V/S Sharma Corporates.
6. On the other hand, the counsel for the accused in his written argument argued that the accused had no due to the complainant as claimed, due to fear and forcible actions of complainant and Banashankari Police, the complainant has obtained his 14 cheques i.e., bearing No.000027 to 000040, further, he contended that as per Ex.P.11 to 14 the total claim of the complainant is for Rs.7,40,000/, but, where as in the complainant he claimed the alleged borrowal of Rs.5,50,000/, therefore, there is lot of difference in the claim of the complainant same has not been explained by the complainant, further, as per Ex.P.3 in this case, Ex.P.9 in C.C. No.59480/2018, the addresses shown in the legal notices of the accused are not correct and claims 6 CC.No.58698/2018 that accused was residing in those addresses at the time of issuance of legal notices i.e., the addresses shown in Ex.P.5 to 8, Ex.P.3 further, he contended that, the complainant failed to state the date of advancement of loan, and also failed to produce documents to show the complainant had raised loans from HDFC and LIC then paid the same to the accused, further, he specifically contended Rs.10,07,773/ has been repaid to the complainant through account transfer or online transfer as per Ex.D.1 and D.2 and also he repaid Rs.5 to 6 Lakh cash to the complainant, accordingly, he claims to have discharged the loan claimed by the complainant, further, he specifically contended that, even if the claim of the complainant considered the loan was borrowed in the year 2013 or 2014 alleged cheques were obtained on 03.07.2017 that means to say after lapse of 3 years from the date of borrowal, hence, the claimed debt is time barred debt, accordingly, it is not legally enforceable debt, and claims to be innocent and pray for acquittal, in support of his argument, he 7 CC.No.58698/2018 relied upon Crl. Appeal 545/2011, Crl., Appeal No. 273/2009, Spl. Leave Appeal (Crl) 1785/2001, Crl., revision petition No.430/2017. Crl. Appeal No.576/2012, 2016 SCC online Karnataka 6035, (2009) 2 SCC 513 ( 2013) 3 SCC 86.
7. he learned counsel for the accused also filed return arguments of the accused. Perused the materials on record. The following point arises for my determination;
"Whether the complainant proves beyond all reasonable doubt that the accused had issued cheque bearing No.000027 drawn on HDFC Bank, R.V. Road V.V.Puram Branch dtd:30.09.2017 in his favour towards discharge of legally enforceable debt in part for sum of Rs.1,09,741/, on it presentation it was dishonored for the remark of "Insufficient Funds", despite service of notice the accused failed to repay the sum of Rs.1,09,741/to him there by the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"8
CC.No.58698/2018
8. My finding to the above point is in the "Affirmative" for the following;
REASONS
9. The complainant alleged to have advanced Rs.5,50,000/ to his friend accused, on receipt of it, the accused allegedly promised him to repay it with an interest of Rs.45,000/ in 12 installment of Rs.50,000/, but, accused failed to return it, however, on 03.07.2017 the accused alleged to have executed letter of indemnity and guarantee in his favour and issued cheques to him, among them the cheque bearing No.000027 drawn on HDFC Bank V.V.Puram Branch Rs.1,09,741/ dated30.09.2017, however it was dishonour, accused failed to repay it despite service of notice, hence this complaint.
10. Inter alia, the accused admits the financial transaction with the complainant, however, he denied the existence of legally enforcible debt and issuance of Ex.P.1 cheque for legally enforcible 9 CC.No.58698/2018 debt, however, he admits the Ex.P.1 cheque and signature there on is that of him, but, specifically contended the cheque and signature on the cheque and also on the letter of indemnity and guarantee, apology letter have been forcibly obtained by the complainant before the Banashankari Police, and he claims to have repaid total sum of Rs.10,07,773/ through account transfer and Rs.5 to 6 lakh by cash to the complainant, notice was not served on him, accordingly, he claims to an acquittal.
11. Considering the rival contentions, it is clear that, there is no dispute with regard to the financial transaction held in between the accused and the complainant, Ex.P.1 cheque and Signature on the cheque is admittedly belongs to accused, however, the accused denied the existence of legally recoverable debt, and issuance of cheque towards legally enforcible debt, execution of Ex.P.9 in favour of the complainant and nonservice of legal notice.
10CC.No.58698/2018
12. So, the initial burden is on the complainant to prove the existence of legally enforceable debt and issuance of Ex.P.1 cheque towards legally enforcible debt, compliance of Sec.138 (a) to (c).
With regard to service of notice
13. The complainant in order to prove the service of legal notice has placed reliance on Ex.P.3 to 8, he stated specifically on oath that he caused demand notice through RPAD to the 5 different addresses of accused i.e.,
1. Mr. Vishwnath M.S. 2. Mr. Vishwanath M.S. S/o. Mr. Murthy S/o. Mr. Murthy Residing at No.205, R.K Employee No.41183, Hoysala Residency, Solution Architect 3rd main, Hoysala Ericsson India Global Nagara, Bangalore Services Pvt. Ltd., 560016. Bagamane WTC, Mahadevapura, K.R.Puram, Outer Ring Road, Bangalore560048.
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3. Mr. Vishwanath M.S. 4. Mr. Vishwanath M.S C/o R. Sambamurthy C/o Rekha Shalini No.19, Lakshmi Nilaya, No.341,3rd floor, 3rd Near Ayappa Temple square, Near Ambedkar Sabari Nagar, 2nd cross, Statue, Austin Town, Jalahalli west, Bangalore560047. Bangalore560015.
5. Mr. Vishwanth M.s C/o. Rekha Salini, Indian Products Pvt. Ltd., 604A,Queen's corner, No.3, Queen's Road, Bangalore560001.
14. According to him the notices issued for 2nd address shown in cause title was delivered on the accused, and other notices issued to different addresses were returned as, left, refused.
15. On the other hand, the accused specifically claimed notice has not been served to him, however, he did not pose any questions to the Pw.1 with respect to addresses mentioned in the legal notice as well as the cause title of complaint, that the addresses specified by the complainant in the complaint as well as legal notice are incorrect or wrong addresses, however, in the examination 12 CC.No.58698/2018 chief the Dw.1 specifically stated that, the first address shown in Ex.P.3 legal notice is pertaining to the house of his father, but, he has no talking or good terms with the father as he married against to wish of his father, further, so far as second address is concern it is office address of his wife, 3rd address it is residential address of his motherinlaw, so far as 4th address, it was his previous residential address, wherein he was residing there in till April 2017, the 5th address his previous company address wherein he worked till September 2013, so, on these grounds, accused claims that the notice Ex.P.3 claimed by the complainant was not served on him.
16. The learned counsel for the accused by relaying upon decision of Hon'ble High Court of Delhi, in Crl. Rev. Pet. No. 438/2017 as argued that, if the notices issued to the wrong address or was not correctly addressed, the presumption cannot be drawn for service of notice therefore, the complaint has not addressed the legal notices 13 CC.No.58698/2018 to the correct addresses of the accused. On the other hand, the counsel for the complainant has argued that, the postal shara discloses the party left, refused, therefore its deems service as it was address correctly to the last known address of the accused.
17. Having considering the rival arguments with the materials on the record as per Ex.P.5 to 8 the notices were returned as left, refused. But, not returned as no such person or incorrect address. Ex.P.9 acknowledgment discloses notice was received, but still the accused claims that the notice was not served, however, it is not of the case of the accused that the addresses shown in cause title as well as in the legal notice is a wrong address or incorrect address, so, as stated in Ex.P.3 legal notice, the notices were issued to 5 different addresses, the first address admittedly belongs to the parental home as per Ex.P.6 the notice caused to the parental home of the accused was returned as left, but, it is not case of 14 CC.No.58698/2018 the accused that it is incorrect address, further, the 5th address shown in legal notice i.e., Indian Products Pvt. Ltd., received by the wife of the accused, further, in cross examination of the Dw.1 accused admitted that the writings in the Ex.P.9 i.e., name and address of him is correct and it was written by him only, however, he claims it was obtained forcibly in the Police station but, it is not his case that, the first address shown in legal notice is incorrect or wrong address, however he claims it is his previous address he was residing there in till 18 April 2017, so notice caused on 08.12.2017 Ex.P.8 addressed to very same address was returned with the shara left but not the address incorrect or false, so, once it is dispatched to known last correct address, it is presumed to be served on the accused as per sec.27 of General Clauses Act, at this stage it is useful to refer the decision of Hon'ble Apex Court in Bhaskaran Vs. Shankarn Vaidyan Balan and another, wherein his lordship as held that:
15CC.No.58698/2018 "Issuance of legal notice proper to the correct address if proved by the complainant then service of legal notice has to be presumed that it was served untill the contrary is proved"
Therefore as per shara Ex.P.8 the accused had left but, not an incorrect address, therefore the decision relied by the accused can not come to his aid, because, in the said case the notice was not issued to the correct address, but here in this case the notice was issued to the correct address but accused claiming that he was residing there till April 2017 is not a ground to disbelieve the service of notice, the above principle also reiterated by the Hon'ble High Court of Karnataka in 2002 Criminal Law journal 1926 in between Fakeerappa Vs. Siddalingappa, wherein it is held that, 16 CC.No.58698/2018 "The only requirement for the service of demand notice is that, the notice should have been sent to the correct address of the drawer, the expressions left", not known, not available in the house locked, shop closed are all synonymous, therefore if the address of the drawer is prove to be correct, even if the notice is returned with the remarks of left, the notice deemed to have been served on the drawer".
So, as pr Ex.P.12 which was admittedly executed on 03.07.2017 is the correct last known address of the accused, so, to the same address legal notice was addressed, accordingly, in absence of contrary material, the claim of the accused about non service of legal notice cannot be acceptable, hence, the complainant has complied Sec. 138 (a) to (c) of N.I Act.
17CC.No.58698/2018 With regard to existence of legally enforceable debt and issuance of cheque The complainant alleges that, after he advanced Rs.5,.50,000/ to the accused by raising loans from HDFC and LIC, on receipt of it accused promised or agreed to return it through 12 equal installment of Rs.50,000/ each along with interest of Rs.45,000/ to it, but, accused allegedly failed to keep up his words, accordingly, complainant demanded the accused through messages, phone calls, Whats App messages to the accused, but, accused did not respond to the demands of the complainant and threatened the complainant as such he approached Banashankari Police, however, the accused and wife of the accused Smt. Rekha Shalini requested him not to proceed the Police complaint and executed an indemnity bond and guarantee on 03.07.2017 out side of the Police Station and issued cheques for repayment of the loan borrowed by the accused along with an apology letter to the Banashakari Police, the cheque in 18 CC.No.58698/2018 question i.e., Ex.P.1 is one amongst the cheques issued to him by the accused on 30.09.2017 dated 30.12.2017 for Rs.1,09,741/, but it was bounced for funds insufficient despite service notice, accused failed to repay it.
18. per contra, the accused denied the existence of legally enforceable debt, however, he admits that, he had financial transaction with the complainant but, specifically claimed he repaid the entire amount borrowed from the complainant through RTGS Rs.10,07,773/ and cash of Rs.5 to 6 lakhs to the complainant, further, despite its repayment the complainant by using influence, on the Banashakari Police Station, the Police had called him to the police station there by putting threat, and force they obtained 14 signed blank cheques, and signatures letter of on indemnity and guarantee from him and his wife, therefore, he specifically claimed, Ex.P.1 cheque not issued towards discharge of legally enforceable debt.
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19. Pw.1 has stated in evidence that, on 03.07.2017 accused has executed letter of indemnity and guarantee in his favour, wherein the accused acknowledged his liability and issued cheques to him out of which the Ex.P.1 cheque also issued on the very same day with an assurance to present it on 30.12.2017, he relaid upon Ex.P.9, the accused specifically asked the Pw.1 on this execution of Ex.P.9, wherein, he suggested that Pw.1 had used the Police force and obtained the Ex.P.9, thereafter, he testified the Pw.1 about who brought stamp paper, who purchased stamp paper, where the printout of letter of indemnity and guarantee taken, for that Pw.1 specifically stated the accused only brought stamp paper by purchasing it in his name on 03.07.2017, so, nothing has brought out about alleged creation of Ex.P.9 from the advocate office of complainant.
20. That apart accused has brought out on record that, the contents of first page in Ex.P.9 has been hand written and other contents in rest of the pages 20 CC.No.58698/2018 are typed and suggested that in the Police Station by using force the complainant made the accused to write the first page and rest of the content got prepared by the complainant in the advocate office then obtained his and his wife signature on each page of Ex.P.9, but, this suggestions categorically denied by the complainant and categorically stated accused has executed Ex.P.9 outside the Police Station, but, not in the Police station, at the time of execution his father was present, so, he accused admits that signature found on each page of Ex.P.9 is belongs to him, however, he specifically claimed the signature on the document and writings in the first page of Ex.P.9, 14 cheques were forcible obtained by the accused from him, however, the accused in his evidence deposed in contrary to his contention that he issued the cheque involved in this case along with other cheques to the complainant at Basavanagudi Police Station, at the time the complainant also obtained one agreement from him on 03.07.2017, the complainant had brought the stamp paper and compelled him to write 21 CC.No.58698/2018 the first page of Ex.P.9 by force and other pages were already printed, forcibly 10 cheques and signatures on Ex.P.9 obtained by the complainant in the Police station by using Police force, however, in the cross examination the complainant has brought out that "
it is true that the contents in written in first page of Ex.P.9 by him, but he voluntarily state it was forcible taken and he has signed each page after he read the contents of Ex.P.9, so, it is clear that, after full understanding the contents of Ex.P.9 the accused has signed on each page of Ex.P.9, but, he claims it was obtained forcibly in the Police Station, however, he admits that, he has not taken any legal action either against complainant or against the Police officials complaining to the superior officials, so, he being a prudent man have not taken any legal action despite he alleges forcibly obtaining of 14 chques and an agreement claiming huge amount of rupees total 6 lakhs.
21. Further, during cross examination it is brought out by the complaint from the Dw.1 that he had 22 CC.No.58698/2018 financial transaction with the complainant, and admitted "it is true to suggest that I put my signature in Ex.P.9 only after gone through the contents of documents, so, while signing the document the contents of the documents were there, therefore, it is not the case of the accused that, he affixed his signatures on blank papers, therefore, considering the entire evidence on these aspects other than the claim of forcibly obtained signature in the Police Station there is absolutely no material on record to prove his contention that the Ex.P.9 had obtained forcibly by the complainant by him in the Police Station, therefore, in absence of proof to that effect alleged threat, force of the Police and complainant cannot be acceptable, further, admittedly accused has not taken any legal action to cancel the letter of indemnity and guarantee, hence, contention of the accused without proof cannot be acceptable, accordingly, on careful perusal of Ex.P.9 there is clear recital that the accused has acknowledged his outstanding amount and agreed to repay it that "against HDFC loan # 25687359 there 23 CC.No.58698/2018 are outstanding 2 EMI's and charges total in Rs.5973. Additionally, I will not be able to pay the July, August, September 2017 EMI's. The assumed charges for them is Rs.15,048/. To clear this amount I am giving a Cheque favouring Ajit dtd.30.09.2017 for an amount of Rs.1,09,741/ bearing No.000027 drawn on HDFC Bank V.V.Puram branch favouring to the complainant". So, the Ex.P.9 clearly disclosing the issuance of cheque Ex.P.1 by the accused towards discharge of part of debt of Rs.1,09,741/, so, it is not the case of the accused that cheque and signature on the cheque i.e., Ex.p.1 (a) is not that of him, but, his only claim that it was obtained forcibly by posing threat, however, in view of admission of the accused that cheque and signature belongs to him as rightly argued and relaid upon the decision by the complainant counsel to draw presumption in favour of the complainant as per Sec.118 (a) and 139 of N.I.Act that until contrary is proved, it shall be presumed that, the cheque was issued for consideration and towards discharge of legally 24 CC.No.58698/2018 recoverable debt. Accordingly, In view of the ratio laid down by the Hon'ble Apex Court Rangappa .Vs. Mohan wherein, the Apex Court has held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
22. So, onus is on the accused to rebut the presumption, to rebut the same the accused has relaid upon Ex.D.1 and D.2 and categorically stated in chief itself that, he totally repaid Rs.10,07,773/ through account transfer and also 25 CC.No.58698/2018 paid 5 to 6 lakhs by cash to the complainant and pleaded discharge of liability, for that, the alleged payment was suggested to the Pw.1 that the account bearing No. 01841140014708 is pertaining to the complainant, from his account No.00761610019095 transferred Rs.25,000/ each from his account to the complainant on 12/02/2013, 04/02/2014, 04/03/2014, 04/04/2014, 04/05/2014, 04/06/2014, 04/07/2014, 03/08/2014, 03/09/2014, 04/10/2014, 06/11/2014, 22/12/2014, 19/04/2015, 19/06/2015, 30/06/2015, 29/08/2015 and also Rs.62,000/ on 22/07/2014, Rs.54,000/ each on 03/08/2014, 12/09/2014, Rs.75,000/ on 28/04/2015 like wise Rs.30,000/ on 06/05/2015, Rs.20,000/ on 19/06/2015, Rs.24,999/ each on 02/10/2015, 02/11/2015, 21/11/2015, Rs.24,200/ each on 26/03/2015, 02/08/2016, 25/03/2016, 22/12/2016, Rs.17,744/ each on 02/10/2017, 25/10/2017 and Rs.35,488/ on 26 CC.No.58698/2018 20/06/2017. all together total according to the accused he repaid Rs.10,07,773/ through account transfer and also other payment i.e., by cash he alleged to have repaid Rs.5 to 6 lakhs to the complainant, but, the complainant doesn't denied the alleged payment made through account transfer, but, he disputes the alleged payment of cash of Rs. 5 to 6 lakhs to him by the accused, so, in addition to this suggestion the accused produced Ex.D.1 and D.2 i.e., is bank account statement, wherein it is clearly disclosing the payment of Rs.10,07,773/ to the account of the complainant, however, the complainant to substantiate the alleged advancement of Rs.5,50,000/ and in and all the accused had borrowed amount of more than Rs.15,50,000/ produced Ex.P.15. It is true that, the complainant has not stated the alleged advancement of Rs.15,50,000/ to the accused in his complaint, but, for the first time in the cross examination stated, he advanced Rs.15,50,000/, however, it is not fatal to the case of the complainant because accused has not disputed the 27 CC.No.58698/2018 receipt of Rs.15,50,000/ from the complainant, however, he claims to have he repaid the amount more than Rs.16,00,000/, but, except Ex.D.1 and D.2 no documents are produced to show that other than Rs.10,07,773/ repayment made through account transfer absolutely there is no iota of evidence to substantiate his contention about payment of cash of Rs.5 to 6 lakhs to the complainant, in absence of that, repayment of Rs.16,00,00/ as contended by the accused cannot be acceptable, in contrary the complainant has produced his bank account statement, Ex.P.15 wherein it clearly discloses on Date Amount 21.09.2013 Rs.2,00,000/ 23.09.2013 Rs.2,00,000/ 24.09.2013 Rs.2,00,000/ 09.10.2013 Rs.14,362/ 05.11.2013 Rs.82,256/ 30.12.2013 Rs.1,65,348/ 03.01.2014 Rs.97,600/ 06.03.2014 Rs.5,55,000/ 28 CC.No.58698/2018 Was credited to the account of accused i.e., 00761610019095 in all the amount of Rs. 15,14,566/ were credited to the account of the accused, but, as per Ex.D.1 and D.2 the repayment were made only Rs.10,07,773/. So, which clearly shows that, as per Ex.D.1 and D.2 the last repayment was made on 26.12.2017 the cheque was issued on 03.07.2017, so , as on the date of issuance of cheque the debt was in existence, though accused claims that he had paid Rs.5 to 6 lakhs by cash to the complainant, but for that absolutely there is no material on record to believe the contention, therefore, the complainant has undoubtedly proved the existence of debt on the date of issuance of cheque and financial transaction between the complainant and accused.
SO FOR AS CONTENTION OF TIME BARRED DEBT
23. Further, the learned counsel for the accuse has vehemently argued by relaying upon the bank account statement the complainant that, the date of 29 CC.No.58698/2018 advancement of loan as per the complainant if taken into consideration, the alleged amount was advanced in the year 2013, if it is so the alleged cheque was issued on 03.07.2017 by that time the claimed debt is a time barred debt which cannot be a legally enforcible debt, accordingly, he prayed for acquittal of the accused, in support of his argument he placed reliance on Crl.Apl. No.545/2011, Crl.Apl. No.273/2009, 2001 CRLJ 24, Spl.Apl.(Cri) 1785/2001.
24. On the other hand, learned counsel for the complainant argued that it is not a time barred debt, as the accused paid the installments till 2017, therefore question of time barred debt does not arise, hence, prays to convict the accused as the accused admits financial transaction with complainant.
25. Having considering the rival arguments with material on record, it is true that complainant has not specified the date of advancement of loan, however, he produced Ex.P.15 to that effect. So, 30 CC.No.58698/2018 based on this the counsel for the accused argued that the alleged advancement of loan was made through account for the first time 21.09.2013 and cheque was issued on 03.07.2017, accordingly the claim made by the complainant after lapse 3 years, accordingly, it is time barred, same can not be acceptable, because on careful perusal of Ex.P.18 the complainant for the first time transfered sum of Rs.2,00,000/ and 21.09.2013, further, on 23.09.2013, on 30.12.2013, 03.01.2014 lastly on 06.03.2014. So, the last date of advancement was on 06.03.2014, if so, admittedly the cheque was issued on 03.07.2017 after lapse of 3 years, however, as per suggestion of the accused and statement of Ex.D.1 and D.2 the accused used to repay the loan amount since 04.02.2014, 26.12.2017, so, which clearly proves that accused has repaid the loan amount part by part i.e., part by part he repaid the loan amount to the accused which saves the limitation for recovery of amount in view of Article 19 of Limitation Act, same is extracted here below, 31 CC.No.58698/2018 " Effect of payment an account of debt or off interest on legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized on in this behalf, a fresh period of limitation shall be computed from that time when the payment was made",
26. So, it is well settled law that the claim for recovery of debt or liability must be made within 3 years from the date of advancement of debt or from the date of last repayment, so, very suggestion of the accused i.e., payment of installments made till 2017 towards loan borrowed from the complainant itself is clearly proved that the claimed debt is not time bar as contended by the accused.
27. Even if the alleged repayment is not taken in to consideration, as per Ex.P.9 the accused has indemnified or acknowledged his debt by issuing cheques to the complainant, it is true that, time 32 CC.No.58698/2018 barred debt is not legally enforcible debt, however, a time barred debt can be enforce as per Sec.25(3) of Contract Act, if the borrower had acknowledged is debt and willing to repay a time barred by writing with a signature voluntarily, then it is even if time barred it can be legally enforcible under law, the relevant provision is extracted here below:
"Agreement without consideration, void unless it is in writing and registered or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. An agreement made without consideration is void unless (3) it is a promise made in writing and signed by the person to be charged with, or by his agent generally or specifically authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced 33 CC.No.58698/2018 payment but for the law for the limitation of the suits in any of these cases such an agreement is a contract."
28. So, as per Sec. 25 (3) of Contract Act, it is very clear that, even if the claim is the time barred debt, which itself not totally under law bar to recover the amount, but. there is an exception U/S 25 (3) of Contract Act, if the borrower promise to repay the time barred debt by writing with his signature then even if it is time barred it can be legally enforcible, therefore, considering the above provision with the materials on record the complainant has relied upon Ex.P.9 letter of Indemnity and guarantee executed by the accused, though the accused admits the signature in each page and writing in first page belongs to him, but, specifically claims it was obtained forcibly in the Police Station, but, to prove the same the accused nothing has produced, that he was singed it under force, threat of Police on 34 CC.No.58698/2018 03.07.2017 in Banashankari Police Station, in absence of that, the contention of the accused cannot be acceptable, so, on careful perusal of Ex,P.9 there is clear recital that he acknowledged his outstanding amount and issued the Ex.P.1 cheque for Rs.1,09,741/, another cheque bearing No.000028 Rs.4,18,116/ and 12 post dated cheques bearing No. from 000029 to 000040 drawn on HDFC Bank for Rs.17,744/ each. So, considering the Ex.P.9 the complainant has undoubtedly proved that accused made promise as per Ex.P.9 to repay the existing part of debt which was borrowed from the complainant in the year 2014 and 15 and issued cheques towards discharge of the outstanding, so, it is as per Sec. 25(3) of Contract Act is legally enforcible debt, at this stage the judgment relied by accused i.e., in between Sessorilia Joseph Vs. Deveshya the lordship has clearly held that, the time barred debt not at all totally unenforcible under law, but, there is an exception that asper Sec. 25(3) of Contract Act if the borrower agreed to repay the time barred debt in writing with his signature then it 35 CC.No.58698/2018 can be enforcible therefore as claimed by the accused the present transaction cannot be enforcible under law is not valid, hence, I do not found legal force in the argument of learned counsel for the accused.
29. Considering the entire materials on record, admittedly there were transactions held in between the complainant and accused, as per Ex.P.15 Rs.15,50,000/ was credited to the account of accused, same is not denied by the accused, however, he specifically claimed as per Ex.D.1 and D.2 he repaid Rs.10,07,773/ through account to the account of complainant which is not denied specifically by the complainant, however, complainant denied the alleged repayment of Rs.5 to 6 lakhs by cash to him, so, the burden is on the accused to prove alleged discharge of loan, but, to substantiate the alleged payment of Rs.5 to 6 lakhs by cash absolutely there is no materials on record to that affect, even, the alleged payment of 5 to 6 lakhs by cash not found in Ex.P.9 which was 36 CC.No.58698/2018 executed on 03.07.2017, therefore, as on the date of issuance of cheque, the accused was due more than Rs.5,50,000/, therefore, complainant has proved the existence of debt as on the date of issuance of cheque Ex.P.1 and it was issued towards discharge of part of the debt, however, the accused raised the point of time barred debt, but, as per Ex.P.15 the accused admittedly repaid the amount in part by part right from04.02.2014 to till 26.12.2017 which saves the limitation for recovery of debt from the date of last repayment even otherwise as per Ex.P.9 the accused executed a letter of indemnity and guarantee on nonjudicial stamp paper, has agreed to repay the loan amount borrowed in the year 2013 and 14 and issued the Ex.P.1 and other 13 cheques for total of Rs. 7,48,775/ through an agreement, so, which is as held supra as per Sec.25(3) of Contract act it is legally enforcible debt, therefore, accused has failed to rebut the presumption drawn infavour of complainant U/S.139 of N.I.Act, as held supra the complainant has complied Sec.138(a) to (c) of N.I. Act i.e, legal notice issued to the correct address of 37 CC.No.58698/2018 the accused with in 30 days from the date of receipt of an endorsement from his banker, and filed this complaint with in stipulated time for non payment of claimed amount, so, the complainant has proved undoubtedly that,the accused has issued Ex.P.1 towards discharge of legal enforcible debt and it was bounced, despite service of notice the accused failed to pay the cheque amount, accordingly, the accused is found guilty of an O/P/U/138 of N.I.Act.
30. So far as sentence and compensation is concern, the material on record clearly revealed that though it is friendly loan but for interest of Rs. 50,000/, loan of Rs.5,50,000/ was borrowed from the complainant, he advanced it on 26.04.2014, but, the accused failed to repay it, however on 03.07.2017 as per Ex.P.9 accused has issued Ex.P.1 cheque for sum of Rs.1,09,741/ it includes an interest, therefore since the date of cause of action and considering the nature of transaction, I am of the opinion that if Rs.1,30,000/ is imposed that would meet the ends of justice. Therefore, the accused is 38 CC.No.58698/2018 sentenced to pay a fine of Rs.1,30,000/ out of the fine amount received the complainant is entitled for Rs.1,25,000/ as a compensation under Sec.357(1) of Cr.P.C. and remaining amount of Rs.5,000/ is to be appropriated to the State. In case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER
Acting under section 255(2) of
Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.1,30,000/ (Rupees one Lakh thirty thousand) in default, the accused shall undergo simple imprisonment for a period of six months.
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CC.No.58698/2018
Out of the fine amount received,
Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 357(1) of Cr.P.C. the complainant is entitled for Rs.1,25,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 8th day of April, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mr. Ajit Y. Vishwanath
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CC.No.58698/2018
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Five postal receipts
Ex.P.5 & 6 : Postal acknowledgments
Ex.P.7 to 9 : Returned postal covers
Ex.P.7 (a) to 9 (a) : Returned postal covers opened in
the open court and notice therin
marked
Ex.P.10 & 11 : Postal tracks
Ex.P.12 : Notarized copy of the letter of
indemnity and guarantee
Ex.P.13 : Notarized copy of the Apology letter
by the accused
Ex.P.14 to17 : Notarized copies of the 4 Original
cheques
Ex.P.18 & 19 : Notarized copies of the Bank
statements.
3. Witnesses examined on behalf of Accused:
D.W.1 : Mr. Vishwanath M.S
4. Documents marked on behalf of Accused:
Ex.D.1 & 2 : Bank Statement
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CC.No.58698/2018
Ex.D.3 : Notarized copy of rental agreement.
(Original agreement has been produced in C.C58698/2018) Ex.D.4 : Affidavit U/S. 65(b) of Indian Evidence Act Ex.D.5 : Experience Letter (M.Vijay), XXXIII ACMM, BENGALURU.