Bangalore District Court
Sri.B.M.Chandrashekar vs Smt.Jayanthi.M on 13 January, 2021
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 13TH DAY OF JANUARY, 2021.
C.C.No.54237/2017
COMPLAINANT : Sri.B.M.Chandrashekar,
S/o. Late B.Muniswamy Gowda,
Aged about 47 years,
R/a No.23, SLV Nivas,
3rd Cross, 1st Main,
Subramanya layout,
Vijanapura, Bangalore - 560016.
.Vs.
ACCUSED : Smt.Jayanthi.M,
W/o Hanumappa,
Aged about 36 years,
R/a Old No.201,
Sri.Renuka Nilaya,
Kithiganur Village,
Bidarahalli Hobli,
Bangalore East Taluk,
Bangalore - 560049.
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.
2C.C.No.54237/2017
2. The brief facts of the case are as follows: The complainant averred that he is a land developer and promoter doing real estate business in the name and style of SLV Land Developer and Promoters having its office at Shop No.2, Seethappa Complex, Raghavendra Circle, T.C.palya main Road, Ramamurthy Nagar, Bangalore and also he having lands in and around Kithaganoor Village, Bidarahalli Hobli, Bangalore East Taluk (viz.Sy.No.170/1, 166/2, 167/2 etc) adjacent to his lands the accused owned a land bearing Sy.No.135/1 measuring to an extent of 1 acre. Accordingly, he got acquaintance with the accused and husband of the accused. Due to this acquaintance, the accused and her husband have approached to him in the month of July 2010 for hand loan of Rs.30,00,000/ in order to meet the family, legal necessities, to clear the debts and to get convert her land bearing Sy.No.135/1 situated at Kithaganoor Village and promised him to repay the amount within 1 year from the date of its receipt by selling the land bearing Sy.No.135/1. The husband of the accused was running a bricks factory in the name and style of RBC Bricks at Kithaganoor Village.
3C.C.No.54237/2017 Accordingly he got confidence on the accused for repayment. As such, he allegedly advanced a sum of Rs.10,00,000/ on 03.07.2010, on 25.08.2010 Rs.3,00,000/, on 23.09.2010 Rs.5,00,000/, on 01.10.2010 Rs.2,00,000/, on 28.10.2010 Rs.7,00,000/, finally on 09.12.2010 Rs.3,00,000/ in total, he allegedly advanced Rs.30,00,000/ to the complainant by way of cash. In this regard the accused had allegedly executed a loan receipt in his favour on 09.12.2010 agreeing to repay the advanced amount within 1 year from the date of its execution.
3. Further, as agreed by the accused, on completion of 1 year, he demanded the accused for repayment of Rs.30,00,000/, but, instead paying the amount, the accused postponed the payments on one or the other reasons despite of selling her converted land in favour of one G.Venkatesh. However, finally, in the month of Januray 2017 the accused had issued a post dated cheque in his favour bearing its No.261727 dtd:06.03.2017 drawn on Andhra Bank, Old Madras Road Branch, Bangalore560036 for a sum of Rs.30,00,000/ in his favour and promised 4 C.C.No.54237/2017 him to present it that would surely be honoured. Accordingly, he allegedly presented the cheque in its banker i.e., Syndicate Bank, Ramamurthynagar Branch, Bangalore on 06.03.2017 but to his surprise the cheque issued by the accused was dishonoured for the reasons that "Account Blocked", in this regard his banker had issued an endorsement on 14.03.2017, same was intimated to the accused, but the accused did not head to his demand.
4. Further, he alleged that on 24.03.2017 he made demand to the accused through legal notice to pay the advanced amount, but the accused has caused a reply notice by denying the alleged transaction, in view of the untenable reply, he alleged the accused despite issuance of cheque for legally recoverable debt, did not pay the cheque amount even after service of demand notice. On these grounds he claimed that accused has committed the offence punishable under Sec.138 of N.I.Act and prayed to punish the accused with a maximum punishment and for other reliefs. Accordingly, he constrained to file this complaint.
5C.C.No.54237/2017
5. Based on the complaint, the sworn statement affidavit, the documents placed by the complainant along with the complaint, the court took cognizance of an offense punishable under Sec.138 of N.I.Act and ordered to register a criminal case against the accused for the offense punishable under Sec.138 of N.I.Act.
6. In pursuance of summons, the accused appeared through her counsel and she was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
7. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.17.
8. On closure of complainant side evidence, the accused was examined under Sec.313(1)(b) of Cr.P.C., she denied the incriminating materials on record and adduced her defence evidence by examining herself as D.W.1 and got marked Ex.D.1 & 19 documents on her behalf. She specifically contended that, cheque Ex.P.1 i.e., questioned cheque and signature 6 C.C.No.54237/2017 Ex.P.1(a) found thereon is belongs to her. However, the said cheque was issued to one Eshwarappa at the time of availing loan from Eshwarappa along with other 4 cheques and signed stamp paper in the year 2010. Despite she had repaid the amount to Eshwarappa, the said Eshwarappa did not return her Cheques and signed stamp paper to her. On these grounds, she claimed that, she had no transaction whatsoever with the complainant and never borrowed Rs.30,00,000/ from the complainant and issued the questioned cheque to the complainant in the year 2017 for discharge of legally recoverable debt. Further, the loan receipt allegedly executed by her in favour of the complainant is a fabricated document. The complainant has fabricated the Ex.P.7 by obtaining her signed stamp paper and Ex.P.1 from Eshwarappa which were given to Eshwarappa for security, obtaining the same, the complainant has made this false claim as such, legally recoverable debt does not exists. Further, she specifically denied the financial capacity of the complainant to lent Rs.30,00,000/ cash to her and the debt claimed by 7 C.C.No.54237/2017 the complainant is a time barred one. On these grounds, she claims to be innocent.
9. Heard both the sides. The complainant has relied upon the following decisions reported in;
a) 2018 (2) Kar. L.R 490 (SC),
b) 2019 (1) Kar. L.R 171,
c) AIR 2010 SC 1898.
10. On the contrary, the learned counsel for the accused in support of his argument has placed reliance on;
a. 2001 Crl.L.J 24, b. Crl.Apl.545/2010, c. Crl.Apl.3824/2012, d. Crl.Apl.302/2010.
11. Perused the materials on record. Following point arises for my determination;
"Whether the complainant proves beyond reasonable doubt that the cheque bearing No.261727 dtd:06.03.2017 for Rs.30,00,000/ issued for legally 8 C.C.No.54237/2017 recoverable debt and same was bounced and despite of demand notice, the accused failed to repay the legally recoverable debt, thereby the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
12. On that basis my finding on the above point is in the "Negative" for the following;
REASONS
13. The complainant specifically alleged that, he is a land developer, promoter having lands at Kithaganoor Village, Bidarahalli Hobli, Bangalore East Taluk. Adjacent to his land, accused land bearing Sy.No.135/1 was situated accordingly, he got acquaintance with the husband of the accused. Based on this acquaintance, the accused allegedly approached along with her husband to him for hand loan of Rs.30,00,000/ in order to get her land converted, and to run the bricks factory run by her husband in the same Village, and agreed to return the said sum within 1 year by selling the property and he was assured by the accused that the land would sell to him if not been sold to anybody. On 9 C.C.No.54237/2017 this assurance and in order to help the accused, he allegedly advanced cash of Rs.10,00,000/ on 03.07.2010, Rs.3,00,000/ on 25.08.2010, Rs.5,00,000/ on 23.09.2010, Rs.2,00,000/ on 01.10.2010, Rs.7,00,000/ on 28.10.2010, Rs.3,00,000/ on 09.12.2010, in totally he allegedly advanced Rs.30,00,000/ to the accused, same was allegedly acknowledged the receipt of the alleged amount on 09.12.2010 in a stamp paper by the accused and accused agreed to return it within 1 year.
14. As assured and agreed by the accused, he allegedly made demand for repayment to the accused on several occasions, but, on one or the other reasons she postponed to pay the advanced amount. However, finally, in the month of March 2017 i.e., on 06.03.2017 the accused issued the Ex.P.1 cheque for Rs.30,00,000/ towards the discharge of legally recoverable debt, but, the same was dishonoured for the reason "Account Blocked". Thereafter, he caused legal notice, but the accused denied the transaction, issuance of cheque. On this specific 10 C.C.No.54237/2017 defense, the accused issued untenable reply to his claim. Accordingly, he claims the accused failed to comply his demand and claims that he has complied Sec.138(a) to (c) and prays to punish the accused.
15. Interalia, the accused specifically denied the alleged transaction, issuance of Ex.P.1 cheque towards the legally recoverable debt, denied the existence of legally recoverable debt, questioned the financial capacity of the complainant and contended specifically that the Ex.P.1 and Ex.P.1(a) are belongs to her, but it was issued to one Eshwarappa at the time of availing loan from him, but despite repayment, said Eshwarappa did not return her cheque, signed stamp paper and other cheques. As such, the said Eshwarappa and the complainant are wellknown to each other. The complainant had obtained the Ex.P.1 cheque from Eshwarappa and misused the same as if it was issued to him by her and made a false claim that it was issued for alleged transaction. Accordingly, she claims to be innocent.
11C.C.No.54237/2017
16. So, considering the rival contentions of the parties, it is clear that, it is not in dispute that cheque at Ex.P.1, signature at Ex.P.1(a), signature at Ex.P.7(a) found on loan receipt are belongs to the accused. The compliance of Sec.138(a) to (c) i.e., validity of the cheque, issuance of demand notice within stipulated time, its service, presenting the complaint within stipulated time as contemplated under 138 of N.I.Act is not in dispute. So, the complainant has complied Sec.138(a) to (c) of N.I.Act. However, the accused specifically denied the transaction, issuance of Ex.P.1 cheque, execution of Ex.P.7 loan receipt, existence of legally recoverable debt and she claims the complainant is a stranger and she never issued the Ex.P.1 cheque, had no transaction whatsoever with the complainant as alleged by the complainant.
17. So, it is well settled law that the initial burden is on the complainant to prove the alleged transaction and the issuance of cheque for legally recoverable debt. In order to discharge his burden, the complainant himself got examined as P.W.1 and 12 C.C.No.54237/2017 placed reliance on Ex.P.1 to 13 and reiterated the averments of the complainant in his chief examination affidavit. The accused has thoroughly cross examined the P.W.1, however, the accused admitted the Ex.P.1 cheque is belongs to her and signature found thereon i.e., Ex.P.1(a) is that of her. So, there is no dispute that the cheque is belongs to the accused accordingly, the complainant has proved the Ex.P.1 cheque and Ex.P.1(a) signature is of the accused. When such being the fact, as rightly relied the decision by the complainant i.e., Rangappa .Vs. Mohan, once the complainant has proved the cheque is belongs to the account of the accused and signature found therein is that of the accused, it is mandatory on the court to draw presumption under Sec.139 and 118A of N.I.Act that the Cheque was issued for legally recoverable debt same is extracted here below.
"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 13 C.C.No.54237/2017 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."
18. Therefore, on considering the above dictum, the initial presumption has been drawn in favour of the complainant that Ex.P.1 cheque was issued by the accused for legally recoverable debt. However, the presumption raised in favour of the complainant under Sec.139 of N.I.Act is rebuttable presumption that has to be rebutted by the accused. The standard of proof for rebutting the presumption is preponderance of probabilities but not strict proof or beyond reasonable doubt is necessary. Therefore, the onus is on the accused to rebut the presumption lies in favour of the complainant.
19. The accused in order to rebut the presumption has specifically questioned the financial capacity and alleged the Ex.P.1 cheque and stamp paper relied by 14 C.C.No.54237/2017 the complainant i.e., Ex.P.7 were issued in favour of one Eshwarappa at the time of availing the loan in the year 2010 by obtaining the same allegedly the complainant has misused and filed this false case under a false claim. Further, even if the case of the complainant is taken into consideration that the debt is true, but which is a time barred one. Therefore, the legally recoverable debt does not exist at the time of issuance of alleged Ex.P.1 Cheque. On these grounds she claims to have rebutted the presumption lies in favour of the complainant same are taken for consideration one by one.
20. Firstly, so far as financial capability is concerned, it is well settled law that whenever the accused questioned the financial capacity of the complainant about the alleged advancement of huge sum of Rs.30,00,000/, it is bounden duty on the complainant to prove his capability or the complainant had money to lent such claimed amount. Therefore, the burden is on the complainant to prove his capability or financial soundness at the time of lending amount, for that the P.W.1 has relied 15 C.C.No.54237/2017 upon his bank statement, sale deeds Ex.P.9 to 11, Certified copies of the petition and objection in A.S. No.17/2020, IT Return Ex.P.14 for the year 2017 2018 and specifically stated he was doing 4 to 5 business i.e., SLV Engineering Shop, land developing and promoting work etc and also he had sold so many lands and accumulated the amount for such advancement and specifically claimed he has discloses the advancement of Rs.30,00,000/ to the accused in IT Returns for the year 201617.
21. The accused vehemently cross examined P.W.1 on the bank account statement i.e., Ex.P.8 by suggesting that only Rs.5,00,000/ was withdrawn on 03.07.2010 as per the bank statement but, the complainant has specifically stated he had other money with him from other sources of business, further she specifically posed question that on 25.08.2010 Rs.3,00,000/, Rs.5,00,000/ on 23.09.2010, Rs.2,00,000/ on 01.10.2010, Rs.7,00,000/ on 28.10.2010 and Rs.3,00,000/ on 09.12.2010 for that the complainant specifically stated though he has produced the bank statement, 16 C.C.No.54237/2017 he had Income from other 4 to 5 business and he had accumulated the amount from other business. However, he admitted, same has not been stated either in the complaint or in the affidavit in chief. But, on careful scrutiny of Ex.P.8 i.e., bank statement clearly discloses that on 03.07.2010, the complainant withdrawn Rs.5,00,000/ cash from his account. Further, on 23.09.2010 Rs.3,80,000/ had withdrawn. Further, in IT Returns he disclosed hard cash of Rs.1,30,12,230/ held by him. That apart, in balance sheet of IT Returns he disclosed that he is carrying out many business i.e., owning SLV Engineering Works, M/s.SLV Land Developers and promoters, owning an agricultural lands. Moreover, the accused is not denying the source of income to the complainant through engineering works shop, land and development works. Further, the sale deeds Ex.P.9 to 11 though which were executed by the complainant subsequent to the alleged advancement of the loan to the accused but still the Ex.P.9 to 11 clearly demonstrate that the complainant had owned the lands and he was doing the land developing and promoting work.
17C.C.No.54237/2017
22. Further, the IT Returns Ex.P.14 has clearly demonstrates that the complainant held hard cash at the time of alleged advancement that he had capability to advance such huge amount. Therefore, though the accused indirectly questioned the financial capacity of the complainant, but failed to elicit anything that the complainant was not capable to lent such huge amount. Besides that, the complainant has produced the bank statement, IT returns, sale deeds which are sufficient to believe that the complainant, had requisite funds or sufficient amount to lent the claimed huge amount in the year 2010. Accordingly, the complainant has proved his financial capacity. On the other hand the accused has failed to probablise his defense that the complainant was financially incapable to lent the alleged claim amount.
23. Further, so far as specific contention of the accused that the questioned cheque along with other 4 signed blank cheques and one signed stamp paper issued by her to one Eshwarappa during the time of availment of loan as a security, despite its repayment, 18 C.C.No.54237/2017 the Eshwarappa did not return the questioned cheque and a signed stamp paper, by obtaining her blank signed cheque and signed stamp paper, the complainant has misused the Ex.P.1 and P.7 by fabricating is concern. The complainant has categorically denied the nexus in between him and one Eshwarappa and specifically contended Eshwarappa is nowhere connected to the present transaction. Further, the accused had settled her dispute with respect to cheques bearing No.261728, 261729 and 261730 before the Lok Adalath in C.C.no.2193/2012. Therefore, the questioned cheque was not at all the subject matter before the Hon'ble ACJM, Bengaluru Rural Court i.e., C.C.No.2193/2012. Accordingly, he contended that the claim of the accused cannot be acceptable. In the absence of cogent evidence to show that the custody of the Ex.P.1 cheque and signed stamp paper i.e., Ex.P.7 were issued in favour of Eshwarappa.
24. The learned counsel for the accused vehemently argued that the accused has elicited from the P.W.1 that the complainant and one Eshwarappa are known 19 C.C.No.54237/2017 to each other, who is none other than the person with whom the accused had transaction. That apart, in balance sheet of Ex.P.14 i.e., I.T.Returns of the complainant particularly dtd:31.03.2017 an advancement of Rs.17 Crores to one Eshwarappa and Shankar has been shown, which clearly demonstrates that the complainant and Eshwarappa are close friends or in other words Eshwarappa is close associate of the complainant. Therefore, the defense of the accused about the custody of Ex.P.1 and Ex.P.7 is probable and acceptable. Accordingly, he claimed that the accused has rebutted by proving her defense that the Ex.P.1 questioned signed Blank cheque and Ex.P.7 signed Blank stamp paper were issued to one Eshwarappa.
25. Per contra, the complainant has vehemently argued that the accused has admitted in her cross examination that a settlement had been taken place in between the accused and Eshwarappa with respect to whatever the financial transaction held in between her and the Eshwarappa i.e., in C.C.No.2193/2012 and specifically the cheques which were issued by the 20 C.C.No.54237/2017 accused in favour of Eshwarappa for Rs.60 Lakhs have been referred in the order sheet and the accused had not taken any specific defense in the said case about the custody of the Ex.P.1 cheque and Ex.P.7 signed stamp paper. As such, the contention of the accused without any cogent evidence cannot be reliable, as it is false. Further, the accused in her reply notice i.e., Ex.P.6 have taken specific defense that the questioned cheque along with 5 other cheques and one signed blank paper were issued in favour of Eshwarappa, but, whereas, in cross examination of P.W.1 in contrary to her defense have suggested that Eshwarappa had agreed to return her 4 cheques, further, in contrary to her own contention taken in her reply notice as well as suggestions made during the cross of P.W.1 that in C.C.No.2193/2012 she entered into a settlement with Eshwarappa only with respect to Cheques bearing No.261728, 261729 and 261730, despite of it, the accused without any proof falsely claiming that the Ex.P.1 cheque and Ex.P.7 signed blank paper were issued in favour of Eshwarappa as a security cannot be acceptable 21 C.C.No.54237/2017 without any proof hence, it is improbable. Accordingly, prays not to believe the same.
26. So, considering the rival contentions with the arguments of both the sides and on perusal of materials on record it reveals that right from the reply i.e., in Ex.P.6, the accused specifically claimed that the questioned cheque along with other cheques and one signed stamp paper for security had issued in favour of one Eshwarappa at the time of availing the loan. However, firstly, she has not specified the cheque numbers which had issued in favour of Eshwarappa in her reply notice at Ex.P.6. Secondly, during the course of crossexamination of P.W.1 for the first time the accused specifically suggested, a criminal case filed by one Eshwarappa against her in C.C.No.2193/2012 on the file of Hon'ble ACJM Court, Bengaluru Rural District and compromise held in between herself and Eshwarappa and specifically suggested that Eshwarappa had agreed to return 4 cheques belongs to her including the questioned cheque for that, the complainant pleaded ignorance about whatever the transaction held in between 22 C.C.No.54237/2017 Eshwarappa and accused and also compromise held in between Eshwarappa and the accused. Thirdly, in contrary to her suggestions made during the course of cross of P.W.1, she deposed in her chief examination that she had transaction with one Eshwarappa and she issued 5 signed blank cheques and one signed blank stamp paper including the Ex.P.1 cheque in favour of Eshwarappa despite repayment of loan, the said Eshwarappa had filed a criminal case against her with respect to cheques bearing Nos.261727 i.e., questioned cheque Ex.P.1, 261728, 261729 and 261730 and she could not remember the cheque number of another cheque. However, further in her chief itself she specifically 7stated on oath that Eshwarappa had filed criminal case only on the basis of 3 cheques i.e., 261728, 261729 and 261730 which was ended in compromise and she placed reliance on the certified copy of the order sheet in C.C.No.2193/2012. On these documents Ex.D.16 to 19 the complainant thoroughly cross examined the accused and got elicited that same is extracted here below;
23C.C.No.54237/2017 "It is true to suggest that the cheques referred in Ex.D.16 i.e., order sheet in C.C.No.2193/2012 are pertaining to the transaction whatever held in between herself and Eshwarappa and dispute in between her and Eshwarappa was settled before the Hon'ble ACJM Court, Bengaluru Rural District."
27. Despite of it, she specifically stated that she do not know the contents of withdrawal application jointly filed by her and Eshwarappa under Sec.257 of Cr.P.C. before the Hon'ble ACJM Court, Bengaluru Rural District in C.C.No.2193/2012. But, further she specifically stated that the criminal case filed by Eshwarappa is only with respect to 3 Cheques and pleaded ignorance about Cheque numbers however, she herself placed reliance of Ex.D.16 to 19 i.e., Ex.D.16 order sheet of C.C.No.2193/2012, Ex.D.17 certified copy of the complaint of the said case, Ex.D.18 sworn statement of one Eshwarappa. On careful scrutiny of these documents, as rightly pointed out by the complainant counsel, the cheque 24 C.C.No.54237/2017 in question i.e., Ex.P.1 was not at all the subject matter before the Hon'ble ACJM Court, Bengaluru Rural District in C.C.No.2193/2012, in the order sheet dtd:27.07.2013 a clear reference has been made by the Hon'ble Court that the complainant has withdrawn the complaint and agreed to return the cheques bearing No.261728 dtd:25.11.2011, 261729 dtd:20.11.2011, 261730 dtd:11.11.2011 each for Rs.20 Lakhs drawn on Andhra Bank, Cambridge School Extension, Old Madras Road, Bengaluru, but, there is no order with respect to return of the questioned cheque or reference in the said case.
28. Further, the certified copy of the complaint of C.C.No.2193/2012 clearly discloses that the cheque bearing Nos.261730, 261729 and 261728 were only the subject matter of C.C.No.2193/2012, but, not the questioned cheque. Therefore, as claimed by the accused, there is no material on record to show that the Ex.P.1 cheque was in the custody of said Eshwarappa. Further, the said Eshwarappa neither claimed the custody of the Ex.P.1 cheque nor agreed to return it. In the absence of the specific material on 25 C.C.No.54237/2017 record, mere suggestion, contention with respect to custody of Ex.P.1 cheque and issuance of the questioned cheque i.e., cheque bearing No.261727 issued in favour of Eshwarappa at the time of availing loan in the year 2010 cannot be acceptable and also her own documents i.e., Ex.P.16 to 18 falsifies her contention about its custody. Therefore, her contention cannot be believed.
29. Further, there is an inconsistency in her own defense plea with respect to issuance of cheques to one Eshwarappa i.e., in reply she specifically claimed to be issued i.e., Ex.P.6 with the disputed cheque along with other 5 signed blank cheques and one signed stamp paper were handed over to Eshwarappa at the time of obtaining loan from Eshwarappa. But, in contrary during the cross of P.W.1 she suggested that including the questioned cheque, the said Eshwarappa was agreed to return 4 signed blank cheques and one stamp paper belongs to her. Further, in contrary in her examination in chief itself she deposed that 5 cheques and one signed stamp paper were issued in favour of Eshwarappa. So, in 26 C.C.No.54237/2017 one breath she claims totally 6 cheques were issued in favour of Eshwarappa. In another breath, 4 cheques were agreed to be returned by the Eshwarappa to her and 5 signed blank cheques and one signed stamp paper were issued in favour of Eshwarappa. So, it is clear that, there is a clear inconsistency about the numbers of cheque which were issued to Eshwarappa.
30. Further, she has not produced any documents to prove her contentions that which are all the cheques which were allegedly issued in favour of Eshwarappa. So, cheque numbers have not been specified in her reply notice. Therefore, as stated supra, the Ex.D.16 only with respect to cheques bearing Nos.261728, 261729 and 261730 but not the questioned cheque and issuance of questioned cheque to one Eshwarappa cannot be believable in view of inconsistency stand of the accused and even to substantiate her inconsistency defense plea, the accused has failed to produce any document to show that the questioned cheque was also issued in favour of Eshwarappa as a security for loan. Therefore, her 27 C.C.No.54237/2017 inconsistency plea about alleged misuse of Ex.P.1 cheque by the complainant obtaining from Eshwarappa cannot be acceptable without proof to the effect that the custody of the Ex.P.1 cheque to Eshwarappa and in turn it was issued by Eshwarappa to the complainant herein. Therefore, though the complainant admitted that he knows the Eshwarappa i.e., with whom the accused had transaction which itself cannot be a ground to believe that the complainant had obtained the Ex.P.1 cheque from Eshwarappa and allegedly misused the same for this false claim. Further, the accused has categorically admitted her signature on Ex.P.7 signed stamp paper but denied the contents of Ex.P.7. However, the custody of the blank signed stamp paper and issuance of the same to one Eshwarappa has not been proved by the accused as it is burden on her to prove the same about the issuance of the signed blank stamp paper to the Eshwarappa. In the absence of that, it is a well settled law that as per Sec.20 of N.I.Act, even an issuance of signed blank stamp paper empowers the holder of the stamp paper to fill the contents unless the contrary is proved.
28C.C.No.54237/2017 Therefore, since, the accused has admitted her signature at Ex.P.7(a) found on Ex.P.7, she executed a loan receipt in favour of complainant on 07.03.2017. Therefore, the specific contention of the accused about alleged misuse of Ex.P.1 and 7 cannot be acceptable. Hence, I do not found any valid force in the arguments of the learned counsel for the accused.
CONTENTION OF TIME BARRED DEBT
31. The accused specifically contended that the claimed debt is not legally enforceable, as the complainant has advanced loan to the accused i.e., Rs.10 Lakhs cash on 03.07.2010, cash of Rs.3 Lakhs on 25.08.2010, Rs.5 Lakhs cash on 23.09.2010, Rs.2 Lakhs cash on 01.10.2010, Rs.7 Lakhs cash on 28.10.2010, Rs.3 Lakhs cash on 09.12.2010. So, the loan transaction was allegedly took place in the year 2010 and as per the complainant, allegedly the accused have executed loan receipt Ex.P.7 in favour of the complainant by acknowledging the receipt of Rs.30 Lakhs cash in different dates referred above and agreed to be return it within 1 year by selling the 29 C.C.No.54237/2017 agricultural land of the accused bearing Sy.No.135/1, situated at Kithaganoor Village was alleged to have been executed on 12.09.2010 i.e., on the date of alleged last payment made by the complainant in favour of the accused. Therefore, any claims with respect to recovery of money should be made within 3 years from the date of borrowal but the claim of the complainant that towards the discharge of the debt borrowed by the accused in the year 2010 allegedly issued Ex.P.1 cheque in the month of January 2017 i.e., post dated cheque dtd:06.03.2017. If it is taken into consideration, the accused has allegedly issued cheque for to discharge debt after lapse of 7 years from the date of last payment i.e., after the lapse of 7 years from the date of last payment i.e., after 3 years from the date of last payment. Therefore, the claimed debt is a time barred debt. As such, as envisaged under Sec.138 of N.I.Act, the complainant has to prove the cheque had issued for legally recoverable debt, as per proviso for Sec.138 of N.I.Act legally enforceable debt includes the debt must be legally enforceable within the time of limitation. As such, the claimed debt is a time barred debt which does not 30 C.C.No.54237/2017 comes within the ambit of Sec.138 and it is not a legally enforceable debt. Accordingly, claims to be innocent and prays for acquittal.
32. Percontra, the complainant claims that as per Ex.P.7, the accused agreed to be return it within 1 year from the date of execution of Ex.P.7 i.e., on 09.12.2010, thereafter he made demand for repayment but the accused kept on postponing the payment by giving one or the other reasons but finally in the month of January 2017 the accused has issued the post dated cheque dtd:06.03.2017 i.e., Ex.P.1. As such, as per Article 34 of Limitation Act, it is not a time barred debt. Therefore, the contention of the accused cannot be acceptable.
33. The learned counsel for the accused has specifically argued on these aspect, though he has not specifically posed question about the time barred debt, but, he suggested and claimed that the claimed debt is not a legally recoverable debt. According to him, as per Ex.P.7 loan receipt was allegedly executed on 09.12.2010 i.e., on the date of last payment made 31 C.C.No.54237/2017 by the complainant in favour of the accused agreed to repay within 1 year but to discharge the said transaction held in between the complainant and the accused lastly on 09.12.2010, the accused allegedly issued a cheque after the lapse of 6 years i.e., in the month of January 2017. Therefore, it is a time barred debt and Ex.P.7 even though it is considered as a acknowledgement of debt as per Sec.25(3) of Contract Act, any acknowledgement for liability or loan that must be in writing and within the period of limitation, but here in this case, the claimed loan receipt was allegedly executed on 09.12.2010 i.e., on last payment. Therefore, the acknowledgment of debt is not for time barred debt. Hence, prayed to acquit the accused by relying upon the decisions reported in; Laws (GAU) 2013 10 21, 1997(1) ALT Cri509, 2001 CriLJ 24, Crl.Apl.No.545/2010, Crl.O.P (MD) No.3824/2012, Crl.Apl No.302/2010.
34. On the contrary, the counsel for the complainant argued that the accused has agreed the receipt of loan by way of Ex.P.7 thereafter she postponed the payment for the one or the other reasons and finally 32 C.C.No.54237/2017 issued the Cheque Ex.P.1 in the month of January 2017, it is not a time barred debt, once the accused admits the issuance of Cheque and signature on the Cheque presumption has to be drawn in his favour under Sec.139 of N.I.Act, as such the arguments of the accused cannot sustainable, accordingly he placed reliance on decision reported in; 2019(1) KLJ in between S.M.Nataraja .Vs. B.M.Prakash
35. Considering the rival contention with the arguments of both the parties with materials on record, it clearly reveals that in the complaint itself the complainant has stated that, he advanced Rs.30,00,000/ i.e., a sum Rs.10 Lakhs on 03.07.2010, a sum of Rs.3 Lakhs on 25.08.2010, a sum of Rs.5 Lakhs on 23.09.2010, a sum of Rs.2 Lakhs on 01.10.2010, a sum of Rs.7 Lakhs cash on 28.10.2010, a sum of Rs.3 Lakhs on 09.12.2010. All the payments made on different dates by cash only, on receipt of the same, the accused acknowledged by executing the Ex.P.7 and agreed to repay it within 1 year from the date of its execution. So, as per the complainant, the last payment was made on 33 C.C.No.54237/2017 09.12.2010. The acknowledgment was executed by the accused on the very same day i.e., on 09.12.2010, towards the discharge of this loan, according to the complainant, the accused had issued the Ex.P.1 post dated cheque in the month of January 2017 dtd:06.03.2017 i.e., after the lapse of 6 years the questioned cheque had issued in his favour. So, it is well settled law that any claim with respect to recovery of money or debt must be made within 3 years from the date of payment of loan, but, in the case in hand, the very case of the complainant clearly discloses towards the discharge of loan of Rs.30,00,000/ which was advanced on 09.12.2010, the Ex.P.1 has issued for discharge of the debt borrowed by the accused in the year 2010. If so, the complainant ought to have made a claim to recover the amount within 3 years from the date of Ex.P.7 or within 3 years on completion of agreed period of 1 year from the date of Ex.P.7, but, he claims that the accused had acknowledged his debt as per Ex.P.7, accordingly, he repeatedly demanded for repayment, but, the accused postponed the same, eventually issued the post dated cheque dtd:06.03.2017 in the 34 C.C.No.54237/2017 month of January 2017. However, during this interregnum period i.e., from the date of last payment or advancement and the issuance of the Cheque i.e., in the month of January 2017, it is not the case of the complainant that no fresh acknowledgment had executed by acknowledging the liability as agreed in Ex.P.7.
36. That apart, it is also not the case of the complainant that during this period the accused has paid the part amount in order to save the limitation. As such, the Ex.P.7 though it has been considered as acknowledgement of debt, it was executed on 09.12.2010. Therefore, it is well settled law that as per article 18 of Limitation Act., execution of acknowledgement of debt extends the limitation for recovery of money from the date of acknowledgment and it must be executed within the period of limitation, but, here in this case the acknowledgement of debt was executed by the accused on 09.12.2010 that was on the date of last payment i.e., on 09.12.2010. Thereafter, no fresh acknowledgement of debt or any amount was paid by 35 C.C.No.54237/2017 the accused towards the discharge of loan. As such, on the face of the complaint itself clearly discloses the right to recover of debt had become barred as on 08.12.2013, but the cheque issued in the month of January 2017 by that time the debt claimed by the complainant had become time barred because, it was issued after the lapse of 6 years from the date of payment and 5 years after completion of 1 year from the date of Ex.P.7 as agreed in the loan receipt. Therefore, there is no doubt that the accused has proved the debt claimed by the complainant is a time barred one.
37. Since the debt claimed by the complainant is time barred one however, as per Ex.P.7 an acknowledgment of debt is nothing but a promise to pay the debt owed by the accused to the complainant. However, the crucial point arises for my consideration, "Whether the Cheque given for the discharge of time barred debt itself becomes contract under Sec.25(3)?"
36C.C.No.54237/2017
38. So, in order to consider the above aspect as held supra the accused has agreed to repay the claimed amount through Ex.P.7 within 1 year from the date of its execution i.e., on 09.12.2010. No doubt, the time barred debt can be enforced but, subject to requirements for promise to pay a time barred debt for that it is relevant to extract the provision 25(3) of Contract Act.
"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 37 C.C.No.54237/2017 payment but for the law for the limitation of the suits in any of these cases such an agreement is a contract."
39. So, in view of the above provision enforcement of time barred debt would be legal provided the promise must be in writing, signed by the debtor to clear the time barred debt, but, here in this case no such agreement or promise is on record to enforce a time barred debt in accordance with Sec.25(3). At this stage, it is just and necessary to rely upon the decision relied by the accused in High Court of Guwahati LAWS (GAU) 2013 10 21 wherein its Lordship has held that; "From a cautious and careful reading of the provision of Sec.25 of the contract Act 1872 as a whole and particularly (3) thereof it becomes clear that the law does not prohibit a person to make a promise in writing and signed by him, to pay wholly or in part a debt which his creditor might have enfoced the payment of but for the law of limitation in instituting a suit for recovery of money, meaning 38 C.C.No.54237/2017 thereby that even if a debt becomes time barred and a suit cannot be instituted for recovery of such a debt by the creditor it does not take away the right of the debtor to make a promise, in writing and signed by him, to make a payment of his debt when such a promise is made it becomes an agreement which being valid in law turns into enforceable contract.
40. The contract so formed can therefore be enforce, considered in this light it becomes clear that when a debtor whose debt or liability becomes time barred, promises in writing and signs the same an enforceable contract comes to be created in respect of the time barred debt and liability and in such a case promiser can be forced him to make good.
41. So, in view of the above dictum it is clear that, to enforce the time barred debt, that must be in a writing signed by the debtor promising to pay the 39 C.C.No.54237/2017 time barred debt to the creditor. Considering the above settled principal law with instant case though Ex.P.7 executed by the accused on 09.12.2010 agreed to be paid Rs.30,00,000/ to the complainant which was lent in different dates, which was apparently executed on 09.12.2010 within the time of limitation for recovery of lent amount as such the Ex.P.7 doesn't come to the aid of the complainant for payment of time barred debt as the Ex.P.7 does not contain the requirements of Sec.25(3) of Contract Act i.e., recital with respect to promise in writing signed by the debtor agreed to be paid a time barred debt as such as held supra the Ex.P.7 is not a contract for payment of time barred debt. As such, Ex.P.7 is not a contract in terms of Sec.25(3).
42. The next question required to be considered is Whether the issuance of Cheque for time barred debt is a promise and it can be lead to a conviction under Sec.138 of N.I.Act?
43. The counsel for the complainant argued that since the cheque was issued for legally recoverable 40 C.C.No.54237/2017 debt, Ex.P.7 executed by the accused which itself is a promise, the question of time barred debt does not arise as the presumption in favour of complainant under Sec.139 of N.I.Act. Accordingly, the contention of time barred cannot be sustainable under law
44. The learned counsel for the accused vehemently argued that, it is not promise and not in accordance with law and relied upon the decisions of Hon'ble High Court of Guwahati reported in; LAWS(GAU) 2013 10 21 wherein the Hon'ble High Court of Guwahati has ruled that; right to recover the loan stood extinguish after 3 years from the date of its borrowal of loan or from the date of last payment. Further, he relied upon the decision of Hon'ble High Court of Kerala reported in; 2001 CriLJ 24 in between Sasseriyil Joseph .Vs. Devassia wherein the Hon'ble High Court of Kerala ruled that; time barred debt cannot be enforceable. As such, the time barred debt does not comes within the ambit of the explanation of of Sec.138 i.e., legally recoverable debt. Same has been affirmed by the Hon'ble High Court of Karnataka 41 C.C.No.54237/2017 decided in Crl.A.No.302/2010 and also Hon'ble Supreme Court in Crl.Apl.No.1785/2010.
45. Having considering with the arguments of both the sides and on perusal of materials on record it is clear from the decision of Hon'ble High Court of Kerala in Sessarial Joseph the Hon'ble devision bench has held that "A Cheque issued in discharge of a time barred debt will not constitute a promise in writing not even an implied promise but, it will under Sec.30 of the N.I.Act and not a criminal liability under Sec.138 of N.I.Act". The above ratio has been affirmed by the Hon'ble High Court of Karnataka in Crl.Apl.No.545/2010, subsequently the above view also has been confirmed by the Hon'ble Apex Court in Spl.Leave Crl.Apl.No.1785/2001. So, in view of the above decisions issuance of Cheque for time barred debt does not constitute a promise in writing. On the other hand, the decisions relied by the complainant i.e., 2019/1 KLR 171 is concerned in that decision the Hon'ble High Court of Karanataka has dealt with the aspects of non disclosure of 42 C.C.No.54237/2017 advancements in ITR, the financial capability but not with respect to a time barred debt. Therefore, the above decision in my humble view not applicable to the case in hand as it does not touches the issue of time barred. Another decision reported in 2018(2) KLR page 490 SC is concerned it is with respect to onus on the accused to rebut the presumption once it is admitted by the accused the Cheque is belongs to his account and signature found on the Cheque is that of him. But the above decision too does not related time barred debt, as such as ruled by the Apex Court the time barred debt is not enforceable however, there is an exception under Sec.25(3) of Contract Act to enforce to legalise a time barred debt a debtor must be voluntarily agreed to be paid a time barred debt with a promise in a writing with his signature but no such averments and also an acknowledgment is on record. Accordingly, in view of the settled law even though the complainant has proved the transaction, financial capability to lent such huge amount the accused has probablised his defence with cogent evidence that the claimed debt is time barred debt and at the time of the issuance of 43 C.C.No.54237/2017 Cheque i.e., in the month of January 2017 towards the discharge of debt borrowed on 09.12.2010 had become a time barred. Therefore, as held supra the issuance of Cheque for a time barred debt without any contract in writing is not a promise as such the accused has rebutted the presumption raised in favour of the complainant as per Sec.139 of N.I.Act.
46. So, the reverse burden is on the complainant to over come the rebuttal evidence placed by the accused on record. But, to over come the defense of the accused in particularly about the time barred debt absolutely there is no material on record to leagalise or the enforceable time barred debt in accordance with Sec.25(3) of Contract Act. Therefore, to attract Sec.138 of N.I.Act., the complainant has to prove the issuance of Cheque for legally enforceable debt as per the proviso of Sec.138, the legally enforceable debt is includes the debt must be recovered in accordance with law of limitation or under exceptional provision Sec.25(3) of Contract Act. But, in the instant case the complaint itself is clearly manifest that the claimed amount was advanced 44 C.C.No.54237/2017 lastly on 09.12.2010 and agreed to be repaid within 1 month from the date of execution of Ex.P.7 i.e., on 09.12.2010. Even after completion of 1 year as agreed if date is taken into consideration I.e, from 08.12.2011 within 3 years as per article of limitation act the complainant ought to have made claim for recover but no evidence to that effect and Cheque was issued in the month of January 2017 after lapse of 5 years by that time the debt claimed by the complainant had become time barred and Ex.P.7 does not contain any promise undertaking to pay a time barred debt voluntarily hence, in the absence of a promise in writing voluntarily to pay a time barred debt the claimed debt is not a legally recoverable debt. Therefore, it is unenforceable at this stage as rightly the accused relied the above referred decision i.e., Sessarial Joseph wherein the Lordship has held that; "A Cheque issued towards the discharge of time barred debt will not constitute a promise in writing not even an implied promise but it will under Sec.30 of N.I.Act, a dishonour give a rise to a civil liability and not criminal liability under Sec.138 of N.I.Act." The above ratio also been confirmed by the Hon'ble 45 C.C.No.54237/2017 Supreme Court hence, a time barred debt cannot be enforceable accordingly Sec.138 of N.I.Act does not attract. Hence, the complainant has failed to prove the issuance of Ex.P.1 Cheque for legally enforceable debt. Accordingly, I answer the above point in "Negative". In the result, following;
ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.
The bail bond stands cancelled.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 13h day of January, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.B.M.Chandrashekar
46
C.C.No.54237/2017
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 : Bank slip
Ex.P.4 : O/c of the legal notice
Ex.P.5 : Postal acknowledgment
Ex.P.6 : Reply notice
Ex.P.7 : Loan receipt
Ex.P.7(a) : Signatures of the accused
& P.7(b)
Ex.P.8 : Bank statement
Ex.P.9 : Certified copy of the sale deed
dtd:20.07.2011
Ex.P.10 : Certified copy of the sale deed
dtd:16.07.2011
Ex.P.11 : Certified copy of the sale deed
dtd:25.07.2011
Ex.P.12 : Certified copy of the petition filed in AS
No.17/2012
Ex.P.13 : Certified copy of the objection filed in AS
No.17/2012
Ex.P.14 : IT Returns
Ex.P.14(a) : Portion of Ex.P.14
Ex.P.15 : Photostat copy of bank passbook
Ex.P.15(a) : Signature of accused
Ex.P.16 : Voter Identity Card
Ex.P.16(a) : Signature of the accused Ex.P.17 : Certified copy of the sale deed Ex.P.17(a) : Signature of the accused 47 C.C.No.54237/2017
3. Witnesses examined on behalf of Accused:
D.W.1 : Smt.Jayanthi.M,
4. Documents marked on behalf of Accused:
Ex.D.1 to : Certified copy of the complaint, deposition Ex.D.3 and IT returns Ex.D.4 to : Certified copy of the order sheet, Ex.D.6 complaint, sworn statement affidavit Ex.D.7 to : Certified copy of the order sheet, Ex.D.9 complaint, sworn statement affidavit Ex.D.10 : Certified copy of the order sheet, to complaint, sworn statement affidavit Ex.D.12 Ex.D.13 : Certified copy of the order sheet, to complaint, sworn statement affidavit Ex.D.15 Ex.D.16 : Certified copy of the order sheet, to complaint, sworn statement affidavit and Ex.D.19 bank statement (M.Vijay), XXXIII ACMM, BENGALURU.