Bangalore District Court
5. I Have Heard The Argument Of Both ... vs To Rebut The Presumptions. Once The ... on 29 November, 2022
1 CC.20029/2019 (J)
KABC030630492019
Presented on : 30-08-2019
Registered on : 30-08-2019
Decided on : 29-11-2022
Duration : 3 years, 2 months, 30 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 29th Day of November2022
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.20029
2.Name of the Complainant: Mrs. V. Padma
Aged about 59 years,
W/o Mr. M. Vijaya Kumar,
R/at No.16, 1st cross,
Shivaji Road, Balappa Garden,
Shivajinagar, Bengaluru560 051.
3.Name of the accused: Mr. Bala Mani. M
Aged about 54 years,
S/o Madhuramuthu,
R/at No.33, 1st cross,
Shivaji Road, Balappa Garden
Shivajinagar, Bengaluru 560 051.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
2 CC.20029/2019 (J)
6.Final Order: Acting U/s.255(1) Cr.P.C., accused is
Acquitted.
7.Date of final Order 29.11.2022.
***
This complaint is filed U/Sec.200 of Cr.P.C. against the accused
for the offence punishable U/Sec.138 of the Negotiable Instruments
Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant has been running chit from 2015. The accused
is the member of the chit run by her. The accused took two chits in the
chits commenced from November 2015 for a total sum of Rs.3,20,000/
at the rate of Rs.8,000/ per month for a period of 40 months. The
accused bid in the said chits and collected an amount of Rs.2,44,000/
on 18.06.2016 for one chit and an amount of Rs.2,42,500/ on
17.10.2016 for another chit. Again two chits commenced in the month
of September 2016 for a total sum of Rs.2,31,000/ at the rate of
Rs.7,000/ per month for 33 months. The accused bid in the said chits
and collected an amount of Rs.1,69,500/ on 21.01.2017 for one chit
and an amount of Rs.1,70,000/ on 16.04.207 for another chit. Yet
another chit commenced on March 2016 for an amount of
Rs.2,00,000/ at the rate of Rs.5,000/ per month for 40 months. The
accused bid in the said chit and collected an amount of Rs.1,46,000/
on 17.07.2016. The accused also borrowed hand loan of Rs.2,00,000/
agreeing to repay the same with monthly interest at the rate of 3%. He
took Rs.50,000/ on 31.01.2016 and Rs.1,50,000/ on 30.03.2016 for
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his family necessities. The accused was not regular in making monthly
payments after deducting the amount paid by the accused. The accused
is still due a sum of Rs.4,50,000/. On repeated requests and demands,
the accused issued two cheques in her favour for total sum of
Rs.4,50,000/. He issued cheque bearing No.539546 dated 09.05.2019
for Rs.2,00,000/ drawn on State Bank of Mysore, Lady Curzon Road
Branch, Bengaluru560 001 and cheque bearing No.539541 dated
24.06.2019 for Rs.2,50,000/ drawn on State Bank of Mysore, Lady
Curzon road branch, Bengaluru560 001. On presentation of cheque
bearing No.539546 dated 09.05.2019 for Rs.2,00,000/ through her
banker on 10.05.2019, it was returned with an endorsement on
13.05.2019. It was received by her on 14.05.2019. It was intimated to
him and he sought for three weeks time to repay the amount.
Thereafter it was presented for encashment on 11.06.2019 and it was
returned dishonoured with endorsement 'Funds Insufficient' on
12.06.2019, which is received by her on 13.06.2019. She issued legal
notice on 08.07.2019 to the accused through RPAD demanding the
payment of the cheque amount. The notice was served on the accused
on 9.07.2019. The accused issued untenable reply on 07.08.2019. The
accused issued cheque for discharge of legal debt/liability, which was
dishonored and failed to pay the amount even after 15 days from the
date of service of notice. Hence prayed to punish the accused and
compensate the complainant.
3. After the institution of the complaint, cognizance was
taken and the case was registered as PCR No.10458/2019. The sworn
statement of the complainant was recorded and on the basis of sworn
statement and other materials on hand, the criminal case was
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registered against the accused and summons was issued to him. The
accused appeared before the court and he got enlarged on bail. The
prosecution papers supplied to the accused and the substance of
accusation for the offence punishable U/s.138 of Negotiable
Instruments Act was read over to the accused. He pleaded not guilty
and claimed to be tried.
4. During the trial complainant examined herself as PW1
and got marked Ex.P.1 to P.11. The statement of the accused U/s. 313
of Cr.P.C. was recorded. The accused examined himself as DW.1 and
got marked Ex.D1. The counsel for the complainant got marked Ex.C1
& C.2 during the cross examination of DW.1 on behalf of the
complainant.
5. I have heard the argument of both learned counsels and
perused the entire materials. The following points would arise for my
consideration.
1. Whether the complainant proves that the accused
issued cheque bearing No.539546 dated 09.05.2019
for a sum of Rs.2,00,000/ drawn on State Bank of
Mysore, Lady Curzon Road branch, Bengaluru 560
001 in her favour towards the discharge of legally
enforceable debt/liability and on its presentation for
encashment, it was dishonored with an
endorsement of "Funds Insufficient" in the account
maintained by the accused and the accused has not
paid the amount even after 15 days from the date of
service of notice and thereby accused committed an
offence punishable U/Sec.138 of N.I. Act, 1881 ?
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2. Whether the accused rebuts the presumption
U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Negative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 & 2: The points are taken together for discussion
to avoid repetition of facts and evidence. At this juncture, it is necessary
to go through the provisions of N.I.Act before proceeding further. The
provisions under Section 118(a) and 139 of the Act., 1881 are
extracted and they reads thus;
"118. Presumptions as to negotiable
instruments. - Until the contrary is proved,
the following presumptions shall be made:
(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration.
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(b) as to date: that every Negotiable
Instrument bearing date was made or drawn
on such date;
"139. Presumption in favour of holder.
It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the discharge,
in whole or in part, of any debt or other
liability."
8. On plain perusal of the provisions under Section 118(a)
and 139 of the N.I.Act., as extracted herein above, it can be seen that
initially the presumptions constituted under these two provisions
favour the complainant. However, it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence, wherein the existence of legally enforceable debt or liability
can be contested.
9. It is also well established that an accused for discharging
the burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. Standard of proof on part of the accused and that of
the prosecution in a Criminal case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubts, the
standard of proof so as to prove a defence on the part of an accused is
"Preponderance of probabilities".
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10. Under the light of above extracted provisions of the Act, I
have perused the oral and documentary evidence on record. In order to
prove her case the complainant examined herself as PW.1 and got
marked Ex.P.1 to P.11. Ex.P.1 is the cheque bearing No.539546 dated
09.05.2019 for a sum of Rs.2,00,000/ drawn on SBM, Lady Curzon
Road Branch, Bengaluru and Ex.P.1(a) is the signature of the accused
on the cheque. Ex.P.2 is the Bank endorsement dated 13.05.2019,
which was issued with a Shara "Funds Insufficient". Ex.P.3 is the
another Bank endorsement dated 12.06.2019, which was issued with a
Shara "Funds Insufficient". Ex.P.4 is the office copy of the statutory
notice dated 08.07.2019. Ex.P.5 is the Postal acknowledgement for
having served the notice on the accused on 09.07.2019. Ex.P.6 is the
reply notice issued by the accused to the complainant. Ex.P.7 to 11 are
the pages in chit book pertaining to chit transaction alleged to have
taken place between complainant and accused. ExP.7 to 11 bear the
signatures of the accused and the same are marked as per ExP.7 (a) to
11 (a). The chit book maintained by the complainant, from which the
pages have been torn and produced as per ExP.7 to 11, has not been
produced.
11. I have perused the exhibits on which the complainant has
placed her reliance. On perusal of the exhibits, it is clear that the
cheque at Ex.P.2 bearing No.539546 dated 09.05.2019 for a sum of
Rs.2,00,000/ drawn on SBM, Lady Curzon Road Branch, Bengaluru
was presented through the Bank within its validity for encashment and
the Bank issued endorsement as per Ex.P.3 on 12.06.2019 with shara
"Funds Insufficient". The complainant issued statutory notice dated
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08.07.2019 as per Ex.P.4 within time from the date of receipt of Bank
Memo. The notice was served on the accused as per Ex.P.5 on
09.07.2019. The accused issued reply notice as per ExP.6. The
complaint was filed on 21.08.2019. Therefore, the documents on
record clearly show that the complainant has prima facie complied the
ingredients of Section 138(a) to (c) of the N.I.Act. The accused
admitted the issuance of cheque and signature. Therefore the
presumptions U/s.118 and 139 of the N.I.Act arise in favour of the
complainant. The presumptions are rebuttable and the burden is on the
accused to rebut the presumptions. Once the issuance of cheque is
proved, the presumption arises in respect of the fact that the cheque
was issued for legally enforceable debt/ liability. The accused can rebut
the presumption by raising probable defence and proving it relying on
the evidence of the complainant or by leading his direct evidence.
12. It is the defence of the accused in the reply notice that he
never met the complainant and he is not aware of the fact that the
complainant was running any chit business. The blank signed cheques
are misused by the complainant. The chit business run by the
complainant is in contravention of the provisions of the Chit Fund Act
1982 and it is illegal. He also asked the complainant to hand over the
cheque but the complainant did not return the cheques.
13. It is the defence of the accused that he knew the
complainant since 2015. The complainant was carrying on the chit
business in the year 2016. He took two chits for an amount of
Rs.50,000/ each. He used to pay Rs.5,000/ per month for each chit.
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He took two chits in August 2016. He took Rs.70,000/ in respect of
two chits. The complainant took two signed blank cheques at the time
of giving the chit amount. She took the cheques stating that they are
required to register the chit. After giving cheque, the complainant paid
Rs.60,000/ to him. He had been paying the chit amount regularly. The
chit ended in January 2017. After paying the entire chit amount, he
asked for return of cheques. At that time, the complainant told him that
the cheques were with her daughterinlaw and she would return them
after three months. When he asked for return of the cheques after lapse
of three months, the complainant asked him to pay Rs.3,000/ each for
two cheques. At that time, the quarrel took place between him and the
complainant. Thereafter the complainant did not return the cheques.
His friend by name Sridhar took chit from the complainant in the year
2019 as he had no cheques, the complainant told him that he could
take the last chit. When himself and his friend went to the complainant
for payment of chit amount, the complainant told them that as she was
taking up the constructions of the house she could pay after one month.
When they asked her to pay the amount after lapse of one month, the
quarrel took place and the complainant gave police complaint, they
went to the police station 2 to 3 times but the complainant did not
come. Therefore the police left them considering the complaint of the
complainant as false. When they asked for payment of money, she told
that she will not pay the amount and they can do whatever they want
to do. When he repeatedly asked the accused to pay the amount, the
complainant is asked him as to why he had been asking the amount of
his friend and she threatened him to recover the amount from him.
Thereafter the complainant misused the cheque and filed false
complaint.. He contacted his lawyer and issued reply notice.
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14. On perusal of the defence of the accused in his reply notice
and the defence evidence, it is clear that the accused took contradictory
stands in respect of his chit transaction with the complainant. He
denied in the reply notice that he knew complainant and that she was
running chit business. However he deposed in his defence evidence that
he knew the complainant and he took two chits of Rs.50,000/ each in
August 2016 in the chit run by the complainant. Therefore it makes
clear that the complainant is known to accused and she was running
chit business and that the accused is one of the members in the chit.
15. It is the case of the complainant that the accused took two
chits in the chits commenced from November 2015 for a total sum of
Rs.3,20,000/ at the rate of Rs.8,000/ per month for a period of 40
months. The accused bid in the said chits and collected an amount of
Rs.2,44,000/ on 18.06.2016 for one chit and an amount of
Rs.2,42,500/ on 17.10.2016 for another chit. Again two chits
commenced in the month of September 2016 for a total sum of
Rs.2,31,000/ at the rate of Rs.7,000/ per month for 33 months. The
accused bid in the said chits and collected an amount of Rs.1,69,500/
on 21.01.2017 for one chit and an amount of Rs.1,70,000/ on
16.04.207 for another chit. Yet another chit commenced on March
2016 for an amount of Rs.2,00,000/ at the rate of Rs.5,000/ per
month for 40 months. The accused bid in the said chit and collected an
amount of Rs.1,46,000/ on 17.07.2016. On the other hand, it is the
defence of the accused that he took two chits of Rs.50,000/ each.
Neither the complainant nor the accused produced any documents in
respect of the chit transactions run by the complainant. The counsel for
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the accused cross examined PW.1 in respect of Chit transaction. It was
elicited in the cross examination of PW.1 that she was running chit
business without obtaining license from the Government and without
following any of the rules for running the chit in accordance with Chit
Funds Act, 1982 . She did not know that running chit is against law as
per Prize Chits and Money Circulation Scheme (Banning) Act, 1978 but
she came to know about the same recently. Therefore it is clear that the
chit run by the complainant illegal.
16. The complainant produced Ex.P7 to 11 to prove that the
accused bid the chit as alleged in the complaint. It is pertinent to note
that the complainant did not produce the chit book/register maintained
by her in respect of the chit transaction. It was elicited in the cross
examination of PW.1 that the chit business was carried out in cash and
the documents produced by her as per Ex.P7 to 11 are the pages in
register maintained by her. She did not produce the chit register book.
She voluntarily stated that she torn the pages pertaining to the chit
transaction of accused and produced before the Court. When it was
asked to PW.1 that whether she can produce the chit register book, she
answered that after the completion of the chit, the pages were torn but
as the accused did not pay the chit amount, the said pages were
retained. The remaining members have repaid the amount and
therefore the pages in respect of chit transaction done with them were
torn. Therefore without producing the chit register book, the pages at
Ex.P7 to 11 could not be considered. Even if the said documents are
considered, the chit run by complainant itself is illegal and therefore it
has no sanctity.
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17. It is the specific defence of accused that he issued cheques
as security for chit transaction. In order to prove the same the accused
produced Ex.D.1. Ex.D1 is the bank statement of the accused. On
perusal of Ex.D1, it is clear that the serial numbers of the cheques
subsequent to the serial number of the cheque in question have been
utilized by him in the year 2016 from 13.11.2016 to 5.12.2016. On the
other hand, it is the case of the complainant that on repeated requests
and demand for repayment of due amount, the accused issued the
cheque in question. The cheque at Ex.P1 is dated 09.05.2019. It is
pertinent to note that the complainant has not averred in the complaint
as to when the cheque was issued by the accused. It is also not her case
that the cheque was taken either at the time of the bid of the chit or at
the time of lending the loan. It is also not her case that the accused
issued post dated cheques. It was elicited in the cross examination of
PW.1 that she had given police complaint prior to filing the present
complaint stating that the accused is due of money to her. She might
have given police complaint on 27.05.2019. She denied that she
obtained the cheque from the accused in the police station. She could
not say from which date and year she had the cheque of the accused
with her. She could not remember whether Ex.P1 cheque was given by
the accused in the year 2016 in respect of the chit. She could not
remember whether the cheque was filled up or blank. The accused did
not issue post dated cheque in the year 20162017 by mentioning the
date and the year 2019. She voluntarily stated that the accused issued
cheque when he took loan of Rs.50,000/ and Rs.1,50,000/. She
waited for 23 years and when the accused failed to pay the amount,
she filled up the date and presented the cheque for encashment. She
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intimated the accused prior to filling of the cheque. As per the
averments of the complaint the alleged due amount of Rs.4,50,000/ is
total of due amount of chit amount and loan amount. Therefore the
complainant has to prove the alleged due amount of the chit. There are
no documents on record to show that what was the chit value, bid
amount, the amount paid by the accused and the due amount. PW.1
stated in her cross examination that the cheques were given at the time
of lending loan. As per the complaint, the complainant did not mention
that the cheques were taken at the time of lending loan. The loan was
alleged to have been lent on 31.01.2016 and 30.03.2016. However it is
not made clear as to on which date the cheques were given. Therefore
the complainant is not sure as to the date of issuance of cheques.
Therefore it creates doubts on the case of the complainant.
18. It is clear from the complaint and evidence on record that
the chit run by the complainant is unregistered chit. Therefore it is
important to discuss issue as to whether the cheque in question, which
is said to have been issued towards chit liability can be said to have
been issued in discharge of a legal debt or liability. At this juncture, it is
necessary to discuss the law governing Chit funds. The Chit Funds Act,
1982 (hereinafter referred to as the Chit Funds Act). It provides for
mandatory registration of chit fund companies, in addition to sanction
with respect to each chit scheme individually. It also mandated a
provision for minimum capital requirements for a company intending
to organize a chit fund, written chit agreements between the foreman
and the subscribers detailing their respective contractual obligations,
and other similar regulations to protect investor's interest. As per the
rules, a Chit fund company, in order to run business is required to first
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obtain a certificate of incorporation from the Registrar of Companies.
Then the same needs to be registered with the Chit fund department of
the government after compliance with the elaborate formalities
including drawing up of bye laws and spot inspection by the registrar.
As per the Act, a prior registration is mandatory. In addition to the
above, every new chit group organized needs to be approved from the
Registrar. Moreover as per provisions laid down in Sections 4 and 5 of
the Chit Funds Act, no person shall commence or conduct any chit or
publish any notice, circular, prospectus, proposal or other document
inviting the public to subscribe for tickets in any chit unless previous
sanction of the State Government is obtained and unless the chit is
registered in that State. A written chit agreement is mandated as per
Section 6 of the Chit Funds Act, which must include the details
regarding the subscribers, the amount of subscription and various other
particulars. Moreover, the said chit fund agreement is required to be
filed with the Registrar, as per provisions of Section 7. It is also
mandated, that the foreman has to provide copy of the chit fund
agreement to all the subscribers, as per provisions of Section 10 of Chit
Funds Act. Most importantly, the subscribers to the chit fund are
entitled to receive a receipt for the payment made by them in lieu of
installments, as per provisions of Section 27 of the Chit Funds Act. The
Act also requires the foreman to give security of an amount equal to the
chit amount, before applying for sanction. This has been done with
object of protecting the interest of the investor. As per Section 13 of the
Chit Funds Act, no foreman, other than a firm or other association of
individuals or a company or cooperative society, shall commence or
conduct chits, the aggregate chit amount of which at any time exceeds
twentyfive thousand rupees. However in present case the amount of
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two chits is Rs.3,20,000/ and amount of one chit is Rs.2,31,000/,
which is in gross violation of the Act.
19. Therefore the question to be considered is whether such an
agreement between the parties, which is forbidden by law can give rise
to legally enforceable contract. The prosecution U/s 138 of the Act can
be sustained, if the debt or liability is legally enforceable. The act of
running an unregistered chit fund being in violation of the statute is
legally unenforceable. The agreement between the complainant being
foreman and the accused being subscriber in respect of unregistered
chit is illegal. Such an agreement, the object of which is forbidden by
law, if given effect to would defeat the provisions of statute i.e. Chit
Funds Act. Section 4 & 5 of the Chit Funds Act, 1982 prohibit running
of a chit fund or proposing subscriptions in a chit fund without
sanction. Also there is clear violation of Section 13 of the Chit Funds
Act. The complainant knew that running chit without compliance of the
Act is illegal. Even though she did not know, ignorance of law is no
excuse. The Courts can not enforce an illegal agreement at the instance
of a person, who is himself a party to an illegality or fraud. It is clear
that the inherent infirmities in the case of the complainant are
sufficient to rebut the presumption of legal liability. Thus the
complainant has failed to establish one of the fundamental ingredients
of Section 138 of the Act, i.e. that the dishonoured cheque was issued
in discharge of a legally recoverable debt or liability.
20. The counsel for the complainant argued that the signature
and the cheque has been admitted. Therefore there is legally
enforceable debt. The counsel for the accused argued that the amount
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alleged to have been lent by the complainant is time barred debt.
Admittedly the complainant lent an amount of Rs.50,000/ on
31.01.2016 and Rs.1,50,000/ on 30.03.2016. The cheque was alleged
to have been issued by the accused on 09.05.2019. If it is considered
that the accused issued cheque in respect of the debt of March 2016,
then cheque is issued for time barred debt.
21. As per the judgment of the Hon'ble High Court of Kerala,
in the case of Sasseriyil Joseph Vs. Devassia reported on 2001 Cri.L.J.
24, wherein it was held that section 138 of NI Act is attracted only if
there is legally recoverable debt and it can not be said that a time barred
debt is legally enforceable debt. As per the judgment dated 28.02.2014 of
the Hon'ble High Court of Karnataka, Bengaluru in Crl.Appeal No.
545/2010 in the case of K.V.Subba Reddy Vs. N. Raghava Reddy,
wherein the Hon'ble High Court of Karnataka referred the judgment of
the Hon'ble High Court of Kerala, in the case of Sasseriyil Joseph Vs.
Devassia reported on 2001 Cri.L.J. 24, which is confirmed by the
Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.)
no.1785/2001 and held that the dishonoured cheque was issued for time
barred debt and it can not be held as legally recoverable debt. Further as
per the judgment dated 17.12.2020 of the Hon'ble High Court of
Karnataka, Kalburgi Bench in Crl.Appeal No. 200057/2016 in the case
of Bidar Urban Cooperative bank Ltd Vs. Mr. Girish S/o Late Gundurao
Kulkarni, wherein the Hon'ble High Court of Karnataka referred the
judgment of the Hon'ble High Court of Kerala, in the case of Sasseriyil
Joseph Vs. Devassia reported on 2001 Cri.L.J. 24, which is confirmed
by the Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.)
no.1785/2001 and held that the time barred debt is not the legally
17 CC.20029/2019 (J)
enforceable debt and issuance of cheque can not be construed as promise
to pay time barred debt.
22. On perusal of the evidence, it is clear that the loan was
lent on 31.01.2016 and 30.03.2016. The cheque is dated 09.05.2019.
Therefore it is clear that the cheque is issued for time barred debt.
Section 18 of the Limitation Act, 1963 deals with
acknowledgement and explanation of limitation and it reads as under:
"Section 18 Effect of acknowledgment in writing
(1) Where, before the expiration of the prescribed period for
a suit or application in respect of any property or right, an
acknowledgment of liability in respect of such property or
right has been made in writing signed by the party against
whom such property or right is claimed, or by any person
through whom he derives his title or liability, a fresh period
of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is
undated, oral evidence may be given of the time when it was
signed; but subject to the provisions of the Indian Evidence
Act, 1872 (1 of 1872), oral evidence of its contents shall not
be received.
Explanation For the purposes of this section
(a) an acknowledgment may be sufficient though it omits to
specify the exact nature of the property or right, or avers
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that the time for payment, delivery, performance or
enjoyment has not yet come or is accompanied by a refusal
to pay, deliver, perform or permit to enjoy, or is coupled
with a claim to set off, or is addressed to a person other
than a person entitled to the property or right;
(b) the word "signed" means signed either personally or by
an agent duly authorized in this behalf; and
(c) an application for the execution of a decree or order
shall not be deemed to be an application in respect of any
property or right.
On going through the citations relied upon by both the parties, it
is clear that the cheque could not be considered as the promise to pay
in writing as contemplated U/s.25(3) of the Contract Act. Mere
issuance of cheque would not revive the debt as per provision U/s. 25
(3) of the Indian Contract Act, 1872. There is no promise in writing as
required U/s. 25 (3) of the Indian Contract Act, 1872. Therefore it
could not be considered as legally enforceable debt. The
acknowledgement was not given before the expiry of 3 years and
therefore fresh limitation would not start. Therefore the limitation for
the recovery of the amount was lapsed and it became the time barred
debt. Hence the amount paid by the complainant could not be
considered as legally recoverable debt or liability and the provision U/s.
138 of NI Act is not applicable.
23. The aforesaid reasons are sufficient to hold that the
complainant failed to prove the issuance of cheque by the accused in
his favour in discharge of the legally enforceable debt as alleged. It is
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well settled that the accused needs to prove his defence by
preponderance of probabilities. It is sufficient if the doubt is created on
the alleged transaction. The accused has created the doubt on the
alleged issuance of cheque in favour of complainant as alleged in the
complaint. Therefore this Court is of the opinion that the accused
rebutted the statutory presumption U/s.139 and 118(a) of the Act.
Accordingly, the accused is found not guilty for the offence punishable
U/s.138 of the N.I.Act. Hence, the Point No.1 is answered in the
Negative and Point No.2 is answered in the Affirmative.
24. Point No.3 : In view of the reasons assigned on Point No.1
and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The personal bond executed by the accused is hereby stands cancelled and office is directed to refund cash surety of Rs.1,000/ to the accused after appeal period is over.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 29th day of November2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
20 CC.20029/2019 (J) ANNEXURE Witnesses examined for the Complainant: PW.1 Smt. V. Padma Documents marked for the Complainant: Ex.P.1. Cheque Ex.P.1(a) Signature of the Cheque. Ex.P.2 & 3 Bank endorsements.
Ex.P.4 Legal Notice.
Ex.P.5 Postal Acknowledgement.
Ex.P.6 Reply notice
Ex.P.7 to 11 Pages of chit register pertaining to the
chit transactions with accused Ex.P7(a) to 11(a) Signatures of the accused Witnesses examined For Defence: DW.1 Sri. Bala Mani [ Documents marked for Defence: Ex.D1 SBI Bank statement of accused Documents marked as C series: Ex.C1 Vakalath Ex.C1(a) Signature Ex.C2 313 statement Ex.C2(a) & 2(b) Signatures (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.