Bangalore District Court
Sri.B.Ramadass vs Mr.T.Venkatesh on 21 March, 2017
IN THE COURT OF THE LVIII ADDL. CHIEF
METROPOLITIAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
Dated this the 21st day of March 2017
PRESENT:
Sri. Nataraj.S. B.A.L, LLB.,
LVIII Addl. Chief Metropolitan Magistrate
Bengaluru.
CASE NO C.C.No.53237/2015
COMPLAINANT Sri.B.Ramadass,
Aged about 66 years,
S/o Late M.Babu,
Residing at No.5, 3rd Cross,
Lakshmamma Layout,
Doddabanaswadi
Bangalore -560043.
ACCUSED Mr.T.Venkatesh,
S/o Late Thangaraj,
No.37/1, 7th Cross,
Kanakadasa Layout,
Lingarajapuram,
Bangalore-560 084.
OFFENCE U/s 138 of Negotiable Instruments Act
PLEA OF THE Pleaded not guilty
ACCUSED
FINAL ORDER Accused is Acquitted
(NATARAJ.S.)
LVIII ADDL.C.M.M.BENGALURU
2 CC.No.53237-2015
JUDGMENT
The complainant filed a complaint Under Section 200 of Cr.P.C for the offence punishable Under Section 138 of Negotiable Instrument Act.
2. The case of the complainant is that:
He is a retired HAL public sector employee. The accused is related to him and borrowed sum of Rs.4,00,000/- as a hand loan from him as per details as follows:
SL.No. Date Amount borrowed Mode of payment 1 9.1.10 Rs.2,00,000-00 By way of cash 2 28.10.10 Rs.1,50,000-00 By way of cash 3 20.11.10 Rs.50,000-00 By way of cash Total Rs.4,00,000-00 The accused acknowledged the receipt of above said amounts and assured to repay the same within 3 years. After lapse of 3 years, to repay the loan amount the accused issued a cheque No.698282 dated 25-2-2015 for Rs.4,00,000/- drawn on Citibank N.A. Bangalore, with assurance of accused the said cheque was presented through his banker Syndicate Bank, Halasuru Branch, Bangalore for encashment on 2-3-2015. The said cheque was dishonour for the reasons "funds insufficient" on 3 CC.No.53237-2015 11.3.2015. Thereafter, legal notice was issued to him on 26.3.2015. The said notice was returned for the reasons "no such person" the accused failed to make payment within stipulated time, accordingly filed the complaint U/s 138 of NI Act and directing him to pay cheque amount with interest at 18% from the date of cheque.
3. The sworn statement was recorded. The Cognizance was taken, summons was issued to the accused. He has appeared through his counsel. The copy of the complaint was furnished to him. The accusation was read over and explained to him, he pleaded not guilty and claimed to be tried.
4. The complainant to prove his case, examined himself as P.W.1 in his support Ex.P.1 to P.9 documents are marked.
5. The statement of accused Under section 313 Cr.P.C. has been recorded. The accused denied the incriminating evidence appeared against him. He did not adduce oral evidence or produced documents.
6. Heard arguments of both sides.
4 CC.No.53237-2015
7. On consideration of contention of both sides and material on records, the following points that arise for consideration are as follows:
1. Whether the time barred debt is legally enforceable debt U/s 138 of NI Act?
2. Whether the accused committed an offence Punishable Under Section 138 of NI Act?
3. What order?
8. My answers to the above points are as follows:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order For the following;
REASONS:
9. Point No.1:- Both points interconnected to avoid repetitions of fact both points are taken together.
10. The complainant in his complainant and oral evidence deposed that he had advanced Rs.4,00,000/- on various dates to the accused as hand loan. The accused agreed to repay the same within 3 years. After expiry of 3 years period accused issued a cheque towards repayment of hand loan, on presentation of cheque which came to be return for the reasons "funds 5 CC.No.53237-2015 insufficient", on issuance of statutory notice which was unserved but the accused failed to make payment within stipulated time. Thus, the complainant is before the court for prosecuting the accused U/s 138 of NI Act.
11. The learned counsel for complainant argued that the complainant advanced hand loan to the accused out of his savings and service benefits, amount of Rs.2,00,000/- was withdrawn from his account on 9.1.2010 and paid to accused, the amount of Rs.1,50,000/- was withdrawn from his account on 28.10.2010 and the sum of Rs.10,000/- withdrawn on 3.11.2010 and paid Rs.50,000/- to the accused, in all Rs,4,00,000/- was paid to the accused. The accused towards discharge of liability he had issued Ex.P.1 cheque which came to be returned for the reasons "funds insufficient".
12. It is further argued that after dishonour of cheque the complainant issued legal notice as per Ex.P.7 to the last known address of the accused mentioned in Ex.P.9 sale deed address. The said notice was returned as "no such person" there is a deemed service of notice. The learned counsel further argued that U/s 138 of NI Act issuance of notice is mandatory not the service 6 CC.No.53237-2015 of notice. There is due compliance of section 138(b) of NI Act. The cheque and signature on cheque is admitted by the accused, the accused has not rebutted the presumption U/s 139 of NI Act. In the cross examination of PW1 by suggesting that he had vacated the complaint address and residing in the present address from February 2015. It shows the accused was residing in the address shown in the complaint which is last known address, the accused has not adduce evidence or produce documents to show he has vacated the complaint address and residing in some other address. Thus, the complainant proved the existence of legally enforceable debt, hence accused is liable to convicted and prayed to award compensation.
13. The learned counsel for accused argued that the complaint itself is not maintainable as per the complaint and evidence of accused the loan was advanced in the year 2010. The cheque was issued in the year 2015. It is a time barred debt, U/s 138 of NI Act time barred debt is not legally enforceable debt or other liability. The accused is entitled for acquittal.
14. The counsel for accused further argued that there is no service of notice U/s 138(b) of NI Act. The notice sent by the 7 CC.No.53237-2015 complainant was not served he had sent the notice to wrong address. The accused had vacated the complaint address and residing in the present address on this grounds also the complaint is not maintainable. The learned counsel further argued that the amount withdrawn by the complainant through self cheque used for his personal purpose and he has not paid amount to accused, no documents, receipts have been obtained from the accused having receipt of loan from the complainant. The accused rebutted the presumption, the complainant failed to establish the existence of legally enforceable debt and prayed for acquittal.
15. The learned counsel for complainant in support of his case relied following rulings in respect of issuance of legal notice. The Hon'ble Supreme Court in
1. Appeal (Crl.) 1255-1261 of 2004 D.Vinod Shivappa Vs Nanda Belliappa
2. Anil Raj Vs Intergrated Finance Co. Ltd reported in 2006 (1) ALD Cri.36 3.1994 (1) ALT Cri 603 K.Madhu Vs Omega Pipes Ltd and Anr and also relied
4.AIR 2010 SC 1898 Rangappa Vs Mohan.
The learned counsel for accused relied AIR 202-SC 985 A.V.Murthy Vs B.S.Nagabasavanna.
8 CC.No.53237-2015
16. I perused the citations relied by the respective parties on careful consideration of submission of learned counsels for both sides. In the instant case before considering the other points the consideration of point No.1 is necessary since it touches the route of the case, if the complaint is maintainable in respect of time barred debt the consideration of point No.2 would arise. Otherwise no need to consider other points. The complainant in his complaint and also in the chief examination in para-4 he has given details of date of advancement of loan of Rs.4,00,000/- on various dates to the accused as below:
SL.No. Date Amount borrowed Mode of payment 1 9.1.10 Rs.2,00,000-00 By way of cash 2 28.10.10 Rs.1,50,000-00 By way of cash 3 20.11.10 Rs.50,000-00 By way of cash Total Rs.4,00,000-00 In para-5 of the complaint reads as follows:
It is submitted that even after the lapse of over Three (3) years when the complainant did not receive the above sum of Rs.4,00,000/- ( Rupees Four Laksh only) he contacted the accused several times and repeatedly requested for its repayment. But the accused kept promising to repay the entire sum and bought time in the pretext of arranging for funds. Thereafter, on 25th 9 CC.No.53237-2015 January 2015, the accused informed the complainant of having arranged funds required to repay his dues and issued a cheque bearing no.698282 dated 25th Febraury 2015 for Rs.4,-00,000/- drawn on Citibank N.A.Bagnalore favouring the complainant.
17. From the above said averments in the complaint, the complainant had advanced hand loan of Rs 4,00,000/- to the accused in the year 2010. After expiry of 3 years from the date of advancement of loan the accused issued Ex.P1 cheque on 25.2.2015 towards repayment of said loan. The learned counsel for accused mainly contended that the cheque in question was issued in respect of time barred debt it is not legally enforceable debt U/s 138 of NI Act for which he relied the Hon'ble Supreme Court ruling in AIR 2002 SC 985 A.V.Murthy Vs B.S.Nagabasavanna, wherein Hon'ble Supreme Court had held that the question of an acknowledgment reviving the period of limitation could be agitated before the Magistrate, in a case where there was documentary evidence; in the said case the balance sheet of the respondent/accused had acknowledged his liability; there is no such documentary evidence in the present case. In Criminal Appeal 545/2010 Hon'ble High court of Karnataka in case of K.V.Subba Reddy Vs N.Ragava Reddy as held that -time 10 CC.No.53237-2015 barred debt is not legally enforceable debt so the cheque issued for repayment of time barred debt does not attract section 138 of NI Act.
18. In the case of Sasseriyil Joseph Vs Devassia reported 2001 Cr.L.J.24 wherein it is observed that, cheque in question was issued in discharge of time barred debt -No valid acknowledgment of debt before expiry of 3 years from the date of loan -Debt not legally enforceable debt at the time of issuance of cheque- accused cannot be convicted for dishonour of cheque.
19. The said judgment was challenged before the Hon'ble Supreme Court in Special Leave to Appeal (Cri) No.175/2001 wherein the Supreme Court held-
" we have heard learned counsel for the petitioner, we have perused the judgment of High Court of Kerala, in Crl.Appeal No.161/1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge Thalassery in Crl.A.No.212/1992 holding inter alia that the cheque in question having been issued by the accused for due which was barred by limitation, the penal provision U/s 138 of NI Act is not attracted in the case. On facts of the case, as available on record and the clear ambiguous provision in the explanation to section 138 of NI Act the judgment of lower appellate court as confirmed by the High court is unassailed. Therefore, the special leave petition is dismissed.11 CC.No.53237-2015
Thus, Hon'ble Supreme Court has confirmed the view taken by the Kerala High Court in Sasseriyil Vs Devassia case. Hence, there is no reasons for this court to apply the judgment of Hon'ble Supreme Court in the instant case.
20. It is an admitted fact that section 25(3) of contract act deals with time barred debt. From the close reading of said section it is made clear that with regard to payment of time barred debt there must be distinct promise to pay either wholly or in part of same. The promise must be in writing either signed by the person concerned or by his duly appointed agent. U/s 18 of Limitation Act the acknowledgment is required to be made before the expiration period of limitation. In the instant case as per the admitted complaint averments before the expiry of 3 years limitation period no such acknowledgment has been issued by the accused or the cheque in question was issued. U/s 25(3) of contract Act deals with the promise to pay debt may be made after limitation period. However, it must be in writing in order to be enforceable. In the instant case there is no such promise has been made by the accused. Therefore, section 25(3) of contract act is not applicable the cheque is not promise. Hence, on the date 12 CC.No.53237-2015 of issuance of cheque at Ex.P.1 on 25.2.2015 the debt mentioned in the complaint become time barred and the cheque in question has not been issued in respect of enforceable debt or other liability for the purpose of invoking section 138 r/w 142 of NI Act. Therefore, the complainant U/s 138 is not maintainable. On this ground alone the complaint is to be dismissed. Accused is entitled for acquittal. The question of considering other aspects of the matter does not arise. Accordingly, I answer Point No.1 and 2 in the Negative .
21. Point No.3: For the aforesaid reasons and findings I proceed to pass the following;
ORDER Acting Under Section 255(1) Cr.P.C.
accused is acquitted for the offence punishable under section 138 of NI Act.
The bail bond of accused stand cancelled and cash security of Rs.4,000/-
deposited by the accused on 16.4.2016 is ordered to be refund to the him (if not forfeited or lapsed ) after expiry appeal period.
(Dictated to the stenographer, transcribe and typed by her, corrected by me and pronounced in the open court on this 21st day of March 2017) (NATARAJ.S.) LVIII ADDL.C.M.M.BENGALURU 13 CC.No.53237-2015 ANNEXURE Witness examined for the complainant:
P.W.1: B.Ramadas Witness examined for the defence:
Nil Document marked by the complainant:
Ex.P.1 Service benefit letter issued by HAL
Ex.P.2 Final Settlement of provide fund
mount
Ex.P.3 Bank account passbook/statement
Ex.P.4 Cheque No.698282 dt 25-2-2015
Ex.P.5 Bank Challan
Ex.P.6 Cheque return memo
Ex.P.7 Legal notice
Ex.P.8 Postal receipt
Ex.P.9 Return envelop
Document marked by the defence :-
Nil
LVIII ADDL.C.M.M.BENGALURU
14 CC.No.53237-2015