Bangalore District Court
Chandrakanth P.D vs K.N. Vasanth on 17 April, 2025
KABC020247662018
IN THE COURT OF ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY.
(SCCH-6)
Present: Smt. Chetana S.F.
B.A., L.L.B.,
IV Addl., Small Cause Judge & ACJM,
Court of Small Causes,
Bengaluru.
CC. No.4606/2018
DATED THIS THE 17th DAY OF APRIL, 2025
COMPLAINANT/S Sri. Chandrakanth P D
S/o. Late Sri Doddappagowda
Aged about 57 years
R/at No.202, Ashiyana Apartment,
47/10, 6th 'A" Cross, Sadashinagar,
Bengaluru-560 080
(By Sri. Balaram M.L. Advocate)
-Vs-
ACCUSED Sri. K.N. Vasanth
R/at. No.739, 9th Cross,
M.C Layout,
Vijayanagar
Bengaluru-560 040
(Sri. R. Renuka Prasad, Advocate)
SCCH-6 2 CC No.4606/2018
-: J U D G M E N T :-
This is a complaint filed by the complainant U/Sec.138 of
the N.I. Act R/w. Sec.200 of Cr.P.C. for the offence punishable
under Sec.138 of the N.I. Act as against the accused praying to
punish the accused for the said offence.
2. The case of the complainant is that, complainant is
a coffee planter, owns coffee plantation at Somawarpet and
Sakaleshpur. Accused is also coffee planter, having plantation
at Kodlipet, Somawarpet Taluk. The complainant and accused
are known to each other for period of years, and both families
are acquainted with each other. Accused by taking advantage
of such acquaintance, accused along with his wife approached
complainant and induced complainant to supply coffee-beans
stored at complainant godown, convincing that accused has
received purchase orders from domestic and international
market. Accused assured complainant for prompt payments
within one week from the date of supply. Accused made
prompt payments for initial supplies, delayed payment for
SCCH-6 3 CC No.4606/2018
subsequent supplied and finally stopped payment when the
dues become substantial. Accused dodged complainant to
make payment citing one or other reasons, postponed to make
the payments. The accused acknowledged dues on his own
before Chamundeshwari seva Samithi, a trust managed by
Goddess Chamundeshwari Temple situated at Kaginele,
Sakaleshpura Taluk, Hassan District. The accused was called
by the temple trust to appear before them on 03.12.2017,
however on the request of the accused the mediation was
convened on 17.12.2017 and accused in order to create trust
with the complainant, and to make sure that his intention is
to make the payment, appeared before the trust, admitted the
liability, reworked the liability as o the date of admitting the
liability, and has issued cheques. Accused voluntarily agreed
to pay Rs.80,00,000/-. In order to show intention to pay the
amount as agreed, accused executed acknowledgment in the
ledger maintained by the temple trust. Accused has agreed to
pay Rs.10,00,000/- on 15.02.2018 and balance amount of
SCCH-6 4 CC No.4606/2018
Rs.70,00,000/- on 29.04.2018. But, on 15.02.2018, the
accused failed to honor his promise and promised to pay the
said amount on 18.02.2018 before the temple trust. Again
accused failed to appear to pay as agreed, but promised
complainant to pay the amount on 04.03.2018. Even on the
said date, accused made complainant to wait near temple
trust, without accused being there. Complainant has co-
operated in all requests to accused, and extended time to pay
from time to time. Accused has met complainant during March
2018 to request complainant to extend time for payment.
Accused again visited complainant office during May 2018 and
assured to make payments and undertaken to make the
payments during June and September 2018. Since accused
agreed to make payments, liabilities were reworked to Rs.1.00
Crore. Accused issued following cheques in order to pay
acknowledged and determined liability, assuring to honor on
presentation.
i) Cheque No.002187, Dt.24.06.2018, drawn on Axis
Bank, Malleswaram Branch for Rs.10,00,000/-
SCCH-6 5 CC No.4606/2018
ii) Cheque No.002193, Dt.15.07.2018, drawn on Axis
Bank, Malleswaram Branch for Rs.40,00,000/-
iii) Cheque No.002194, Dt.30.08.2018, drawn on Axis
Bank, Malleswaram Branch for Rs.20,00,000/-
iv) Cheque No.002191, Dt.30.09.2018, drawn on Axis
Bank, Malleswaram Branch for Rs.30,00,000/-
The complainant presented the cheque bearing No.002193
on 15.07.2018 for Rs.40,00,000/- through his banker and
same has been dishonored and returned with endorsement
"Insufficient Funds" on 01.08.2018. The Complainant got
issued legal notice dated 20.08.2018. Though accused
received notice, but failed and neglected to pay the amount,
even not bothered to reply to the notice. Accordingly, the
accused has committed an offence punishable under Sec.138
of N.I Act. Hence, this complaint.
3. After recording the sworn statement of the
complainant by way of affidavit and also verifying the
documents, cognizance was taken against the accused for the
offence punishable under Sec.138 of N.I. Act. The accused
appeared before this Court through her counsel and enlarged
on bail and his plea was recorded. The accused pleaded not
SCCH-6 6 CC No.4606/2018
guilty and claimed to be tried. Hence, the case was posted for
evidence of the complainant.
4. The complainant got examined himself as PW.1 and
got marked 6 documents as Exs.P.1 to P.6. Thereafter, the
case was posted for recording the statement of accused under
Sec.313 of Cr.P.C. In the statement U/s. 313 Cr.P.C., the
accused has denied all the incriminating evidence appearing
against him and claimed to be tried and did not choose to led
evidence on his behalf.
5. Learned counsel for the accused has filed memo of
citation:-
1.ILR 2021 KAR 2437-The Bidar Urban cooperative bank Ltd., Bidar Vs Mr.Girish
2. 2001 Crl.J.24-Sesseriyil Joseph Vs Devassia
3. AIR 2008 Supreme Court -John K.John Vs Tom Varghese and another
4. 2000 Crl.J.257-Narinder Kumar Vs Harnam Singh SCCH-6 7 CC No.4606/2018
5. (2009) 2 Supreme court cases 513 Kumar exports Vs Sharma Carpets
6. (2008) 4 Supreme court carper 54 Krishna Janardhan Bhat Vs Dattatraya G.Hegde
7. 2015 AIR SCW 64-K.Subramani Vs K.Damodara Naidu
6. Heard the arguments of both side and Perused the records.
7. The following points arise for my consideration:
1. Whether the complainant proves that the cheque bearing No. 002193 dated 15.07.2018 for Rs.40,00,000/- drawn on Axis Bank Ltd., Malleswaram Branch branch, Bengaluru issued by the accused has been dishonored on the ground of 'Insufficient Funds' on 01.08.2018 and even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated period and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?SCCH-6 8 CC No.4606/2018
8. My findings on the above points are as under
Point No.1: In the Negative Point No.2: As per final order for the following:
-: R E A S O N S :-
9. POINT NO.1:- In view of the present legal position as held by our Hon'ble High Court as well as Apex Court of India in a catena of decisions as well as relevant provisions of the Act, this court has to see whether the complainant has complied all the requirements as contained in Sec.138 of NI Act so as to bring home the guilt of the accused for the alleged offence. If so, whether the accused is able to rebut the legal presumption available to the complainant under Sec.139 of the Act by adducing probable defense or not. However, it is held by the full bench of our Apex Court in the case of Rangappa Vs. Mohan reported in 2010 (1) DCR 706 that;
"The Statutory presumption man- dated by sec.139 of the Act, does in-SCCH-6 9 CC No.4606/2018
deed include the existence of a legally enforceable debt or liability. However, the presumption U/S 139 of the Act is in the nature of a rebuttable pre- sumption and it is open for the ac- cused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
10. Therefore, in view of the above decision, once the cheque is admitted, the statutory presumption would automatically fall in favour of the complainant that, the alleged cheque was issued for discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
INGREDIENTS OF OFFENCE AND DISCUSSION:-
11. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the SCCH-6 10 CC No.4606/2018 offence:-
First Ingredient: The cheques were drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheques were drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheques were returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the SCCH-6 11 CC No.4606/2018 payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
-APPRECIATION OF EVIDENCE-
12. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, and fifth ingredient. The complainant had proved the original cheque vide Ex.P.1 which the accused person had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was SCCH-6 12 CC No.4606/2018 presented within its validity period. The cheque in question was returned unpaid vide return memo dated 01.08.2018 vide Ex.P.2 due to the reason, "Funds insufficient". The complainant had proved the service of legal demand notice dated 20.08.2018 vide Ex.P.3 by bringing on record the postal receipt Ex.P.4 and Speed post acknowledgment vide Ex.P.5 and postal Track consignment vide Ex.P.6. Thus, there is a dispute only with regard to the second ingredient to the offence. As such, the 1st,3rd,4th& 5th ingredient of the offence under section 138 of the NI Act stands proved.
13. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debtor any liability. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumption are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the SCCH-6 13 CC No.4606/2018 presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
14. The combined effect of these two provisions is a presumption that the cheque is drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
15. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is SCCH-6 14 CC No.4606/2018 for the accused to rebut the same by establishing a probable defence.
16. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
First defense: No legally recoverable debt existed.
17. Accused has taken specific defense that there was no transaction between him and the complainant all. The learned counsel for accused has argued that the complainant has not produced any document to show that he was a coffee planter and he was possessing the coffee estate and he has grown the coffee-beans. Even he has not stated specifically as to how much coffee beans he has grown in the particular year and how much coffee-beans he has sold to the accused and on SCCH-6 15 CC No.4606/2018 which dates. The complainant has simply stated that on various dates since 1998 he has sold the coffee-beans to the accused and accused has issued the cheques towards payment for the purchase of the said coffee-beans. In absence of the documents, the version of the PW.1 cannot be believable and acceptable.
18. In this regard, on perusal of the evidence of the PW.1 and the complaint, as rightly argued by the learned counsel for the accused, complainant has not stated specifically and particularly as to the various dates on which he has sold the coffee-beans to the accused and also what was the quantity of coffee beans sold by him and price for which he has sold them on which dates he has sold. Nowhere either in the complaint or in the notice or in his affidavit complainant stated the particular date year and specific quantity of coffee beans sold by him to the accused and also for how much price he has sold the coffee-beans and what was the amount paid by the accused and balance payable by the accused on SCCH-6 16 CC No.4606/2018 various transactions to the complainant. Non disclosure of the said material fact clearly shows that the complainant has not approached this court with clean hands and suppressed the material facts. His conduct was not that of a prudent man why no instrument was not executed, although huge sum of money was due by the accused towards the purchase of coffee beans was a relevant question which could be posed in the matter. Not only had no document been executed, even no interest has been charged, it would be absurd to form an opinion that despite knowing that accused was not paid and ready to pay any amount even after so many years why the complainant has not taken any documents or else have taken any legal steps or issued the notice for the recovery of the balance amount. Even the amount due by the accused did not carry any interest. Even there was no witness to the said transaction. Under such circumstances, this court can draw an inference as to the probability of the complainant case. When complainant is claiming the cheque amount to be the SCCH-6 17 CC No.4606/2018 amount payable by the accused with regard to the purchase of the coffee-beans from him. Complainant must specifically state entire details with regard to transaction, as to when he has sold the coffee-beans and for which price he has sold and how much quantity he has sold and what was the amount due on various dates payable by the accused. When complainant has not stated particulars of the material facts with regard to the transactions, the case of the complainant appears to be more doubtful.
19. Further it was argued by the learned counsel for the accused that complainant has not produced any single document to show that PW.1 was a coffee planter and he was growing coffee from various years and has sold the coffee- beans to the accused. When complainant is claiming the huge amount of Rs.80,00,000/- from all the four cases including Rs.40,00,000/- in this case and remaining Rs.40,00,000/- from other three cases filed by the complainant i.e., CC No.4605/2018, CC No.4760/2018 and CC No.5317/2018 SCCH-6 18 CC No.4606/2018 which is a huge amount Certainly if at all PW.1 has sold coffee-beans of a such huge amount certainly PW.1 would have taken any document in proof of the transaction, at least receipts or any bill. But, the complainant has not produced any such single documents, receipts or bills in order to prove his case and hence, the complainant has not at all sold any coffee-beans to the accused and therefore the case of complainant itself is doubtful.
20. In this regard, on perusal of the evidence and the materials available on record as rightly argued by the learned counsel for the accused complainant has not produced any single document to show that PW.1 has sold the coffee-beans to the accused. If at all complainant has sold any coffee-beans to the accused then certainly complainant would have possessed or obtained any single receipt or bill for the selling of the said coffee-beans to the accused or else would have maintained at least some account statement showing about the various transactions and dates and amount due. When as SCCH-6 19 CC No.4606/2018 per the complainant himself, he has sold the coffee-beans to the accused since 1996 to 1998 on various times on credit basis, then certainly PW.1 would have obtained or possessed any of the bills or receipts or the accounts showing about the the transactions of selling of the coffee-beans and its weight, quality, quantity and dates. The version of the PW.1 that he has not obtained any receipt or document to show the transaction cannot be acceptable and believable as ordinarily no prudent man that too complainant being a business man would go on selling and supplying coffee-beans to the accused on various dates for huge amount without obtaining any receipt or any document for the balance amount due by the accused towards the coffee beans that too on a credit basis.. As such, the version of the PW.1 that he has sold the coffee- beans for such a huge amount to the accused on various dates i.e., since from 1996 to 1998 without receiving any amount or documents is highly unbelievable or not acceptable.
21. Apart from this, PW.1 in his cross-examination para- SCCH-6 20 CC No.4606/2018 7 clearly admitted that no agreement or documents were executed to show that accused used to purchase coffee-beans from him on credit basis. Though PW.1 contended that accused used to give the cheques and hence he has not taken any documents, but, in his further cross-examination PW.1 stated that he used to return those cheques and accused used to issue new cheque. But ordinarily in the normal course of business conduct when there was any business transaction on the credit basis, certainly in the normal course of business conduct invoices or bills will be raised or otherwise at least any document will be prepared to show the transaction and also to show the pending amount payable by the purchaser. But in the present case no single documents is produced on record to show that there was any transaction between accused and complainant itself. Therefore the case of the complainant itself appears to be more doubtful.
22. Apart from this, as per the complainant himself, he has sold coffee-beans to the accused from 1996 to 1998 and SCCH-6 21 CC No.4606/2018 from that date till this date i.e.,2018 filing of this case, the complainant has not taken any steps or legal action against accused for the recovery of the amount due by the accused itself creates more doubt about the case of the complainant.
23. In this regard, PW.1 has taken the contention that he has placed the said issue before the Kaginele, Chamundeshwari Temple, Sakaleshpura wherein there is a custom of hearing to the public complaints and issues and after hearing both side, the temple committee will decide the matter and solve the issues. Accordingly, the complainant has given the complaint before the said Chamundeshwari temple in the year 2017 wherein the said temple trust had resolved the dispute through mediation on 03.12.2017 and accused voluntarily agreed to pay Rs.80,00,000/- to the complaint and has agreed to pay Rs.10,00,000/- on 15.04.2018 and balance amount of Rs.70,00,000/- on 29.04.2018. When accused has failed to comply the same, even accused has failed to appear before the temple trust and thereafter accused requested to SCCH-6 22 CC No.4606/2018 extend the time for the payment for which complainant agreed. Thereafter, after repeated request, accused issued the following cheques:i) Cheque No.002187, Dt.24.06.2018, for Rs.10,00,000/- ii) Cheque No.002193, Dt.15.07.2018, for Rs.40,00,000/-iii)Cheque No.002194, Dt.30.08.2018, for Rs.20,00,000/- iv) Cheque No.002191, Dt.30.09.2018, for Rs.30,00,000/-.
24. In support of his contention, PW.1 has produced the requisition filed by him to the Chamundeshwari Seva Temple to issue copy of the settlement talks and the decisions arrived by the temple in respect of the complaint lodged by him against the accused which was marked as Ex.P.7 in CC No.4605/2018 and the xerox copy of the same is produced in this case. Further, he has produced the certified copy of the entry of the Chamundeshwari Seva Samithi Register dated 17.02.2017 as per Ex.P.8 in CC No.4605/2018 and the xerox copy of the same is produced in this case. Further he has produced hand written copy of the Seva Samithi certified by SCCH-6 23 CC No.4606/2018 the Seva Samithi as per Ex.P.9 in CC No.4605/2018 and the xerox copy of the same is produced in this case. Though complainant has produced zerox copies of Ex-P7 to 14 (marked in CC No.4605/2018) complaint, request letter given by him to Chamundeshwari temple and letter given by temple and police complaint lodged by wife of accused and FIR, complaint and charge sheet in Cr.No.0439/2018 and though those docuemnts have not been marked in present case, but complainant has marked certified copies of said document in CC No.4605/2018 as per Ex-P7 to Ex-P14 on the same day. Moreover the present case is connected with CC No.4605/2018 and transaction in CC No.4605/2018 and in this case are one and same transaction. Moreover accused has not disputed the same and has cross examined the PW-1 at length on those documents. Hence this court rely on all these documents.
25. On perusal of the Ex.P.8 marked in CC No.4605/2018 copy of the Register of the Chamundeshwari SCCH-6 24 CC No.4606/2018 Seva Samithi it shows that the dispute was placed before the Seva Samithi and as per Ex.P.8 marked in CC No.4605/2018 accused has agreed to pay Rs.80,00,000/- to the PW.1 on 29.04.2018. As per Ex.P.9 (marked in CC No.4605/2018), also it clearly shows that Chamundeshwari Seva Samithi have decided the dispute between the complainant and accused and accused has greed to pay Rs.80,00,000/- to the complainant.
26. But however, the accused has entirely denied Ex.P.8 and Ex.P.9 (marked in CC No.4605/2018) and it was argued by the learned counsel for the accused that complainant has not proved Ex.P.8 and Ex-P9 (marked in CC No.4605/2018) by adducing the evidence of any members of the Seva Samithi and mere producing the document would not prove the same as original document is not at all produced before the court. On perusal of the Ex.P.8 and 9, they are the certified copy and Ex.P.9 is the document in handwritten letter and it was certified by the Chamudeshwari Seva Samithi as rightly argued by the learned counsel for accused the complainant SCCH-6 25 CC No.4606/2018 has not examined any of the witnesses to prove that the matter was referred before Seva Samithi and also prove that settlement arrived before the Seva Samithi and PW.1 has not examined any of the member of the said Chamundeshwari Seva Samithi or the president who has issued Ex.P.8 and 9 or who was present at the time of settlement. Hence, Ex.P.8 and 9 cannot be believable and relied on by this court.
27. Apart from this, though PW.1 has given complaint against the accused with regard to the said transaction before the Chamundeshwari temple, but it was on 2017. But, the transaction was of the year 1996 to 1998. From 1998 to 2017 i.e., almost 20 years why PW.1 has kept quite and has not issued any notice or not taken any legal action or given any police complaint against the accused. There is no clarification and explanation given by the PW.1 in this regard. Even PW.1 has not made any attempt to secure or take any document in proof of the said transaction till 2017 and even till filing of this complaint for the reasons best known to him. Even PW.1 SCCH-6 26 CC No.4606/2018 himself in cross-examination para 10 clearly admitted that there was no problem for him to file the case against the accused for not paying the amount in the year 1999. When such is the fact, why PW.1 has not taken any legal action or complaint or issued the notice demanding for the repayment of the money makes the case of the complainant highly doubtful. Ordinarily no prudent man would keep quite without taking any steps for recovery of such a huge amount and without taking legal action or without taking any document when there was due of Rs.80,00,000/- from the accused. Hence, the version of the PW.1 appears to be doubtful.
2nd Defence:- Time barred debt
28. Further it was argued by the learned counsel for the accused that the transaction has been taken place in the year 1996 to 1998 and complainant is claiming the said amount in the year 2018 i.e., almost 20 years. Even according to the complainant accused has issued the post dated cheque in the year 2017 i.e., after 19 years of the alleged transaction and it SCCH-6 27 CC No.4606/2018 clearly amounts to time barred debt and the complainant cannot claim the cheque amount in respect of the time barred debt as it does not amounts to the legally recoverable debt.
29. Further, learned counsel for the accused has taken the specific defense that as per the complainant himself the transaction between him and the accused was taken place from 1996 to 1998 and accused has issued the cheque in question in respect of the said transaction in the year 2017 i.e., almost after 19 years and the time limitation for recovery of the money is 3 years from the date of last transaction and as such, the present debt if any is a time barred debt and the cheque issued for the recovery of the for the repayment of the time barred debt does not attract offence under section 138 of the N.I. Act.
30. In this regard counsel for the accused relied on the decision reported in the Kerala High Court in a decision reported in 2001 Crl.L.J 24 in case of Sasseriyal Joseph Vs Devassia, held that section 138 of the Act is attracted SCCH-6 28 CC No.4606/2018 only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt. Cheque in question was issued in discharge of the time barred debt and there was no valid acknowledgment of the debt before expiry fo 3 years from the date of loan. Hence the debt not legally enforceable at the time of issuance of the cheque. Accused cannot be convicted for the dishonour of cheque since there was no acknowledgment of the debt before the expiry fo 3 years from the date of loan, the debt was not legally enforceable at the time of issuance of the cheque. The said Judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001 by Hon'ble Supreme Court by Judgment dated:10-09-2001 affirmed the said view of Kerala High Court and it is held as under:
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in SCCH-6 29 CC No.4606/2018 Criminal Appeal No. 161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No. 212 of 1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instruments Act is not attracted in the case.
31. In this regard learned counsel for the accused relied on the decision in between Bidar Co-Operative Bank Ltd. V/s Girish wherein it was held that, in para No.39 The penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under SCCH-6 30 CC No.4606/2018 section 138 of N.I Act. A cheque given in discharge of a time barred debt will not constitute a promise in writing not even an implied promise so as to attract a criminal liability under Section 138 of N.I Act.
32. In view of the principles stated in the above referred decision and discussion it is evident that the penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under section 138 of N.I Act. A cheque given in discharge of a time barred debt will not constitute a promise in writing not even an implied promise so as to attract a criminal liability under Section 138 of N.I Act.
33. Thus in the present case admittedly as admitted by SCCH-6 31 CC No.4606/2018 the PW.1 himself the last date of transaction was in the year 1998 and the cheque was issued in the year 2017, almost after 19 years of the alleged transaction and if any debt is existed it amounts to a time barred debt and that cheque issued towards the time barred debt is not an legally recoverable debt and hence, does not attract Sec.138 of the N.I.Act. Therefore, a cheque given in discharge of a time barred debt will not constitute a promise in writing and not even an implied promise, so as to attract a criminal liability under Sec.138 of the N.I.Act.
34. Further accused has taken the specific defence that complainant himself has borrowed the loan of Rs.5,00,000/- from the accused for his daughters marriage and when complainant has came to the house of the accused complainant has brought his family members and also the rowdies and made scuffle with the accused persons and by threatening them forcefully obtained four cheques from the accused and his wife and in this regard accused and his wife SCCH-6 32 CC No.4606/2018 have lodged a complaint before the police. But the said defence entirely denied by the complainant.
35. On the other hand, complainant stated that when accused has went to the house of the accused to give invitation card of his daughter marriage and for asking repayment of the due amount, at that time accused along with wife and family members themselves abused PW.1 and his family members in filthy language and made galata with them. When PW.1 has lodged a complaint against the accused thereafter accused also lodged a complaint against the complainant before Vijaya Nagara Police station and in support of his contention, complainant has produced Ex.P.11 the FIR registered against the PW.1 by the accused wife.
36. As per ExP.11, wife of the accused by name Manjunaladevi has lodged a complaint against the PW.1 stating that her husband Vasantha and Chandrakanth PW.1 was having the business transaction and her husband K Vasanth i.e., accused has purchased the coffee-beans from the SCCH-6 33 CC No.4606/2018 PW.1 during the said business transaction and since accused has sustained the loss accused could not pay the amount correctly to the Chandrakanth PW.1. and on 24.06.2018 at 3.00 p.m. PW.1 entered into house of the accused and abused them in the filthy language and assaulted the said Mangaladevi and gave the life threat to them and forcibly taken the cheques and the documents from the accused and also further stated that PW.1 has taken the signature of the accused to those cheques forcefully by giving the life threat and further wife of the accused requested for the return of those cheques and the documents and requested time for payment of the balance payment.
37. Even PW.1 has produced the Ex.P.11 (in CC No.4605/2018) private complaint lodged by accused. Thus from the Ex.P.11 and 12(in CC No.4605/2018) documents it is clear that there was a business transaction between the complainant and accused and as per the complaint lodged by the accused and his wife itself, Ex.P.11 and 12 (in CC SCCH-6 34 CC No.4606/2018 No.4605/2018) it is clear that accused used to purchase the coffee-beans from the complainant and accused was liable to pay the amount to the PW.1 in respect of the purchase of the coffee-beans. But, it is not clearly stated by the accused and also not proved by the complainant as to how much amount accused is liable to pay to the PW.1 towards purchase of the coffee-beans. But, however complainant has failed to prove that towards discharge of the liability accused has voluntarily issued the cheque in question as Ex.P.11 and 12 (in CC No.4605/2018) complaint clearly creates a doubt about issuance of cheque in question in discharge of legally recoverable debt voluntarily by accused. Apart from this, as discussed above, Section 138 of the NI Act will not attract in respect of the time barred debt. Hence in view of above all facts and circumstances complainant has failed ton prove that accused has issued the cheque in question towards discharge of legally recoverable debt. Even PW1 has failed to prove that cheque was issued towards any legally recoverable SCCH-6 35 CC No.4606/2018 as the said debt is time barred debt as discussed above.
Conclusion:
38. In view of all the above discussion, it can be concluded that the complainant has failed to establish through cogent and convincing evidence, the fact of issuance of the cheque for discharge of legally enforceable debt or any liability, which is dishonored for want of sufficient funds. On the other hand, the accused has successfully rebutted the presumption available to the complainant through probable evidences, that would preponderate upon the evidence led by the complainant. Therefore, the accused is held to have not committed an offence punishable under sec. 138 of N.I. Act. Accordingly, Point No.1 is answered in the NEGATIVE.
39. POINT NO.2:- In view of my answer to point No.1, I proceed to pass the following:-
-: O R D E R :-
Acting under Section 278(1) of the Bharatiya Nagarik Suraksha Sanhita, SCCH-6 36 CC No.4606/2018 2023, accused is acquitted for the offence punishable under Section 138 of NI Act.
The bail and surety bond of the
accused and surety shall stand
canceled.
(Dictated to the Stenographer, transcribed and computerized by her. After her typing, corrected, signed and then pronounced by me in open Court this the 17th day of April, 2025).
(CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, Bengaluru.
ANNEXURE List of witnesses examined for the Complainant:
PW.1 :- Sri.Chandrakanth P D List of witnesses examined for the accused:-
-NIL-
List of documents marked for the Complainant:-
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
SCCH-6 37 CC No.4606/2018
Ex.P.2 : Bank Endorsement
Ex.P.3 : Legal Notice
Ex.P.4 : Postal Receipt
Ex.P.5 : Speed post acknowledgment
Ex.P.6 : Postal track consignment
Xerox copies of document with regard to settlement conversation between accused and PW.1 on 19.09.2024 in the Chamundeshwari Seva Samiti Temple regarding the transaction.
Chamundeshwari Seva Samiti Temple register dated 17.02.2017 Letter dated 13.10.2024 Letter issued by the police to the complainant under Right to Information Act FIR in Cr.No.0439/2018, complaint, Final report and Acknowledgment is produced for reference. As certified copies of the same is produced in CC No.4605/2018.
List of documents marked for the accused:-
NIL (CHETANA S.F.) IV Addl., Small Cause Judge & ACJM, Court of Small Causes, BENGALURU.SCCH-6 38 CC No.4606/2018