Bangalore District Court
Sri.M.Srinivas vs Sri.S.Vivek Christopher Leo on 3 February, 2023
1 C.C. No.8793/2019 Judgt.
KABC030269852019
Presented on : 11-04-2019
Registered on : 11-04-2019
Decided on : 03-02-2023
Duration : 3 years, 9 months, 22 days
IN THE COURT OF THE XII ACMM, BENGALURU
Dated: This the 03rd day of February, 2023
Present:
Smt. Reshma H.K., B.A.,LL.B.,
C/c XII ACMM, Bengaluru
C.C.No.8793/2019
Complainant : Sri.M.Srinivas,
S/o T.Munikrishnappa,
Aged about 50 years,
R/at: Door No.9/1,
B Street, 10th Cross,
Magadi Road,
Bangalore - 560015.
(By Sri.S.V., adv.)
V/s
Accused : Sri.S.Vivek Christopher Leo,
S/o A Subramanian,
Door No.5 (Old No.13),
5th Cross, Ayyappanagar,
Jalahalli West,
Bangalore - 560015.
(By Sri.H.R.D., Adv.)
2 C.C. No.8793/2019 Judgt.
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2. The factual matrix of the complaint is that the accused along with his father and mother approached the complainant for a hand loan of Rs. 10,00,000/- for his higher education. the complainant being very acquainted with the father of the accused had handed over the said amount to the accused. While borrowing the said amount the father of the accused furnished the original title deed pertaining to residential property in presence of witnesses as a security on 16-07-2014. Thereafter accused issued two cheques i.e., cheque bearing No.505358 dated:28.01.2019 for an amount of Rs.5,00,000/- and another cheque bearing No.505359 dated:18.01.2019 for an amount of Rs.5,00,000/- drawn on Dena Bank, Penya Industrial Estate Branch, Bangalore in favour of complainant.
3. Further, as per the accused instructions, the complainant has presented the said cheques for encashment on 28.01.2019 3 C.C. No.8793/2019 Judgt. through his banker i.e., State Bank of India, BEL Campus Branch, Jalahalli, but to the shock and surprise of the complainant said cheque was returned as 'Payment Stopped by drawer' as per the bank memo dated:30.01.2019. Thereafter, the complainant issued a Legal notice dated:07.02.2019 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was served to the accused. After service of notice, accused give reply to the notice, but failed to repay the amount covered under the cheque. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4 C.C. No.8793/2019 Judgt.
6. The complainant in order to prove his case, he himself examined as PW-1 and got marked 28 documents i.e., Ex.P-1 to Ex.P-28. Original Cheques marked as Ex.P.1 and Ex.P.2, Signature of accused marked as Ex.P.1(a) and Ex.P.2(a), Return Memos marked as Ex.P.3 and Ex.P.4, Legal notice marked as Ex.P.5, Postal Receipt marked as Ex.P.6, Track Consignment marked as Ex.P.7, Reply notice marked as Ex.P.8, Statements of Account marked as Ex.P.9 to Ex.P.11, Original Sale Deed marked as Ex.P.12, Original Will marked as Ex.P.13, Death Certificate marked as Ex.P.14, Holder Khatha Certificate marked as Ex.P.15, Holder Khatha Extract marked as Ex.P.16, documents issued by BBMP marked as Ex.P.17 and Ex.P.18, Encumbrance Certificates Ex.P.19 to Ex.P.22, Receipts issued by the BBMP, Revenue Department marked as Ex.P.23 to Ex.P.28.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against him and he choose to lead evidence on his behalf and himself examined as DW.1 and got marked Ex.D.1 to Ex.D.07.
5 C.C. No.8793/2019 Judgt.
8. Heard arguments and the counsel for the accused filed his written arguments and perused the materials on record. The counsel for accused also relied on the following decisions;
1) 1997 (2) Crimes 658 Andhra Pradesh High Court
2) 2001 Crl.L.J 24 Kerala High Court
9. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheques i.e., cheque bearing No.505358 dated:28.01.2019 for the legally enforceable debt of Rs.5,00,000/- and another cheque bearing No.505359 dated:18.01.2019 for the legally enforceable debt of Rs.5,00,000/-, in favour of complainant and they were presented within the validity period and same are returned unpaid on account of "Payment Stopped by Drawer" and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. If so, whether the debt payable by the accused is time barred debt ?
3. What Order?
6 C.C. No.8793/2019 Judgt.
10. My findings on the above points are as under:-
Point No.1 : In the "Negative" Point No.2 : In the "Affirmative" Point No.3 : As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
11. Point No.1 & 2:
These two points are inter connected to each other and hence taken together for common discussion in order to avoid repetition of facts and for brevity.
12. As per the complaint averments and the evidence adduced by the complainant, it shows that the specific case of the complainant is that, the accused along with his father and mother approached the complainant for a hand loan of Rs. 10,00,000/- for his higher education. The complainant being very acquainted with the father of the accused had handed over the said amount to the accused. While borrowing the said amount the father of the accused furnished the original title deed pertaining to residential property in presence of witnesses as a security on 16-07-2014. Thereafter accused issued two cheques i.e., cheque bearing No.505358 dated:28.01.2019 for an amount of Rs.5,00,000/- and another cheque bearing No.505359 7 C.C. No.8793/2019 Judgt. dated:18.01.2019 for an amount of Rs.5,00,000/- drawn on Dena Bank, Penya Industrial Estate Branch, Bangalore in favour of complainant. Further the case of the complainant is that, he has produced the said cheques to the bank and same were bounced due to 'Payment Stopped by Drawer'. Thereafter, though the complainant issued legal notice to the accused to pay the said amount, but the accused failed to repay the amount covered under the cheques. Hence, the accused has committed the offence punishable under section 138 of Negotiable Instrument Act. In order to prove the case of the complainant, the complainant himself examined as P.W.1 in the form of affidavit and reiterated almost all the contents of complaint averments once again and got marked the documents as Ex.P.1 to Ex.P.28.
13. Further, in order to prove the guilt of the accused for offence under section 138 of Negotiable Instruments Act, 1881, the complainant is required to prove the following ingredients beyond reasonable doubt:
(i) Accused had issued a cheque in favor of complainant.
(ii) The said cheque has been issued in discharge of a debt or liability and is for consideration.
(iii) The said cheque has been dishonored on presentation.8 C.C. No.8793/2019 Judgt.
(iv) Accused has failed to make payment of cheque amount within statutory period of service of legal notice served to him by complainant.
14. The above ingredients of offence punishable under section 138 of NI Act are required to be considered with reference to sec. 118 and 139 of the Act. It is worth to note that according to section 118 and 139 of the Act, rebuttable presumptions are available in favour of the complainant to the effect that the once the issuance of cheque, its dishonor is proved, court has to presume that the same has been drawn for consideration and it is issued for legally enforceable debt or liability. The onus of proof to rebut this presumption lies on the accused. Therefore, if the accused is able to raise a probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
15. In ordered to rebut case of the complainant, the accused set up his defence by way of cross examination of PW.1 and also examined himself as DW.1 and got marked Ex.D.1 to Ex.D.7. As per the evidence on record the specific defense of the accused is that the alleged amount has been given to father of accused by name Subramanya and said Subramanya 9 C.C. No.8793/2019 Judgt. issued Ex.P.1 and Ex.P.2 to the complainant. Further, it is contended that on 08.09.2015 he has borrowed a sum of Rs.5,00,000/- from the complainant and as a security for the said amount, his father provided the property details to the complainant. Accordingly, a Mortgage Loan Agreement was also entered in between the complainant and accused on 08.09.2015. Further, in the chief examination affidavit accused admitted the two blank signed cheques in favour of the complainant.
16. Further the contention of the accused is that the said amount of Rs.5,00,000/- was not paid back and hence a fresh understanding arrived between the complainant and accused and his parents. According to the said Agreement accused and his parents agreed to pay back a sum of Rs.5,00,000/- along with interest of Rs.4,50,000/- in total Rs.9,50,000/- to the complainant and accordingly a loan agreement was executed on 01.06.2018. Further, complainant returned the blank cheques issued by the father of the accused, but inspite of repeated requests he has not returned the cheques, which were issued by the accused and hence he has given instructions to the bank to not to honour the said cheques. 10 C.C. No.8793/2019 Judgt.
17. Further, in the chief examination affidavit, accused denied the allegation of the complainant that they have received Rs.10,00,000/- in the year 2014 for the purpose of higher education of the accused at abroad. For which accused contended that he has completed his education and he was employed and hence no necessity to go abroad by obtaining a loan for education purpose. However, during the course of cross examination of PW.1, complainant denied all the above facts, which were posed by way of suggestion by the accused counsel. Further, PW.1 reiterated he has paid Rs.10,00,000/- on 16.07.2014 to the accused and it is also the case of the complainant that the Ex.P.1 and Ex.P.2/Cheques has been issued during the month of June-July 2018.
18. On careful perusal of the evidence adduced by both the parties it is crystal clear that there was a financial transaction held between accused and complainant. Though the accused admitted the borrowing of loan from the complainant but stated that he has received only Rs.5,00,000/- and also deposed regarding the Mortgage Agreement and Revised loan agreement for an amount of Rs.9,50,000/- by pledging all property documents. Even though he has executed all these 11 C.C. No.8793/2019 Judgt. documents along with his parents by pleding property documents, but the complainant fails to return the cheques belongs to accused. Further, as per the evidence and materials on record and the specific case of the complainant is that the financial transaction held between the accused and complainant on 16.07.2014. As per the pleadings and evidence of the complainant he is claiming the amount covered under the cheque pertaining to the transactions held on 16.07.2014 and the date of issuance of the cheque is June- July 2018. Further there is no valid acknowledgment of debt before expiry of three years and it indicates that alleged debt is time barred debt.
19. With this regard, while submitting arguments counsel for the accused relied on the decision of the Hon'ble Supreme Court of India in a case of 'Sasseriyil Joseph V/s Devassaia' reported in 2001 CRL.L J 24 wherein which it is held that;
"No valid acknowledgement of debt before expiry of three years from the date of loan - Debt not legally enforceable at time of issuance of cheque - Accused cannot be convicted for dishonour of cheque".12 C.C. No.8793/2019 Judgt.
20. Further, the counsel for accused relied on the decision of the Hon'ble High Court of Karnataka in a case of 'The Bidar Urban Co-Operative V/s Girish' in Crl.A.No.200057/2016. Further, in a decision of the Hon'ble High Court of Andrapradesh in a case of 'Giridhari Lal Rathi V/s P.T.V Ramanujachari and Another' reported in 1997 (2) Crimes 658 wherein which it is held that;
"Debt had become time barred when cheque was issued - By issuance of cheque, limitation was not extended - No fault could be found with acquittal. It is also further held in the same judgment "Until the debt is legally recoverable the drawer of the cheque cannot be fastened with the liability under section 138 of the Act".
21. It is noteworthy to mention that, the complainant has not been satisfactorily explained regarding the date of issuance of cheque, when the accused specifically contended that she has issued said cheques at the time of availment of loan. Furthermore, as per the 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 13 C.C. No.8793/2019 Judgt. 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. Under Section 18 of Limitation Act the acknowledgment is required to be made before the expiration period of Limitation. However, it must be in writing in order to be enforceable.
22. In the instant case there is no such promise has been made by the accused. There is no material on record to show that accused made a promise for the repayment of the loan availed on 16.07.2014. The complainant kept mum for about 04 years regarding the recovery of the loan by the accused. It is noteworthy to mention that the law will not lend its helping hands those who are slept over their rights. More so, on the date of issuance of cheque at Ex.P.1 and Ex.P.2 on June-July 2018 the debt mentioned in the complaint became time barred and the cheque in question has not been issued in respect of enforceable debt or other liability for the purpose of involving section 138 of NI Act. Therefore, the present complaint is not maintainable. Under the facts and circumstances of the case, question of drawing presumption under section 118 and 139 of Negotiable Instruments act does not arise. Hence, the inevitable conclusion is that the present complaint filed by the complainant U/s 138 of 14 C.C. No.8793/2019 Judgt. N.I.Act is not maintainable. Therefore, I answered point No.1 in the "Negative" and point No.2 in the "Affirmative".
23. Point No.3: On foregoing reasons assigned while answering Point No.1 and 2 and in the result, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(1) of Cr.PC., the accused is hereby acquitted of the offence punishable U/S 138 of Negotiable Instrument Act.
Bail bond and surety bond of the accused shall stand cancelled.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 03 rd day of February, 2023.) (SMT.RESHMA H.K.) C/c XII ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : M.Srinivas 15 C.C. No.8793/2019 Judgt.
2. List of witnesses examined on behalf of the accused:
DW-1 : Vivek Christopher Leo
3. List of documents marked on behalf the
complainant:
Ex.P.1 & 2 : Original Cheques
Ex.P.1(a) & 2(a) : Signatures of accused
Ex.P.3 & 4 : Return Memos
Ex.P.5 : Legal notice
Ex.P.6 : Postal Receipt
Ex.P.7 : Postal Acknowledgment
Ex.P.8 : Legal notice
Ex.P.9 to 11 : Statement of account
Ex.P.12 : Sale Deed
Ex.P.13 : Will
Ex.P.14 : Death Certificate
Ex.P.15 : Holder Khatha Certificate
Ex.P.16 : Holder Khatha Extract
Ex.P.17 & 18 : Documents issued by BBMP
Ex.P.19 to 22 : Encumbrance Certificates
Ex.P.23 to 28 : Receipt issued by BBMP,
Revenue Department.
4. List of documents marked on behalf of the
accused:
Ex.D.1 : Copy of Agreement
Ex.D.2 : Stop Payment letter to the bank
Ex.D.3 : Reply Notice
Ex.D.4 : Postal Acknowledgment
16 C.C. No.8793/2019 Judgt.
Ex.D.5 : Provisional Degree Certificate Ex.D.6 : Certificate issued by Director of Ensemble on automation design and entertainment Pvt. Ltd., Ex.D.7 : Appointment letter Digitally signed RESHMA by RESHMA H K HK Date: 2023.02.04 18:01:20 +0530 (SMT.RESHMA H.K.) C/c XII ACMM, BENGALURU