Karnataka High Court
K V Subba Reddy vs N Raghava Reddy on 28 February, 2014
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.545/2010
BETWEEN:
K V SUBBA REDDY
S/O SUBBA REDDY, 68 YEARS
R/AT NO.248, AECS I STAGE, I MAIN
2ND CROSS, R.M.V. II STAGE
BANGALORE - 560 094. ... APPELLANT
(BY SRI S.G.BHAGAVAN, ADVOCATE)
AND:
N.RAGHAVA REDDY
S/O. LATE N.BALAKRISHNA REDDY, MAJOR
PROP: VAISHNOVI, NO.5, NIMMO ROAD
SANTHOM, CHENNAI - 600 004. ... RESPONDENT
(BY SRI UNNI KRISHNAN.M., ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) CR.P.C.,
PRAYING TO SET-ASIDE THE JUDGMENT DATED 11.02.2010,
PASSED IN C.C.NO.36817/2001, ON THE FILE OF COURT OF
XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE & XX
ASCJ AT BANGALORE, ACQUITTING RESPONDENT-ACCUSED
OF AN OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The learned trial Judge has acquitted respondent (hereinafter referred as 'the accused') of an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). Therefore, appellant (hereinafter referred as 'the complainant') is before this court.
2. I have heard Sri S.G.Bhagavan, learned counsel for complainant and Sri M.Unnikrishnan, learned counsel for accused.
3. The averments of complaint in brief are as follows:-
The complainant is a Class-I PWD Contractor, so also the accused. The accused and complainant have been friends since more than 10 years. During the year 1996, accused has undertaken the work of excavation of earth at Thagalur Chromite Mines in Channarayapatna Taluk, which was allotted to him by Mysore Minerals Company Limited. The accused requested complainant to provide two 3 excavators and twelve tippers, belonging to complainant on hire for execution of aforestated work. The accused completed work and received money from Mysore Minerals Company Limited. The accused issued cheque dated 20.05.1997 towards part payment of hire charges in a sum of Rs.19,00,000/-. On presentation, cheque was dishonoured with an endorsement "payment stopped by drawer". The common friends of accused and complainant wanted to sort out dispute by bringing settlement between parties. Therefore, dispute between parties was discussed before well-wishers on 30.10.2001. It was agreed that a sum of Rs.39,00,000/- shall be paid by accused to complainant, for which purpose accused issued the instant cheque for a sum of Rs.39,00,000/-. On presentation, the cheque was dishonoured for "want of funds". The complainant caused a legal notice. There was no response from the accused.
Therefore, instant complaint was initiated.
4. The learned counsel for parties have taken me through evidence.
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5. In the first place, the complainant has not produced books of accounts to show that accused had taken aforestated number of tippers and excavators from complainant on hire. The complainant has failed to prove that on 20.05.1997, accused was due in a sum of Rs.19,00,000/- to complainant towards hire charges and that accused had issued cheque bearing No.019756 dated 20.05.1997 for a sum of Rs.19,00,000/- in favour of complainant. In the second place, complainant has not explained the circumstances under which a sum of Rs.19,00,000/- which was due on 20.05.1997 was inflated to a sum of Rs.39,00,000/- on 30.10.2001.
6. At this juncture, it is relevant to state that under section 138 of the Act, complainant has to prove that accused had issued cheque to discharge legally recoverable debt/liability. The complainant cannot rest contend by production of cheque and assigning reasons for dishonour of cheque.
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7. As per the averments of complaint, there was discussion between complainant and accused in the presence of their well-wishers on 30.10.2001. The accused issued cheque bearing No.139729 dated 30.10.2001 for a sum of Rs.39,00,000/- in favour of complainant. In the affidavit evidence, complainant has reiterated the same.
8. In the legal notice (Ex.P.4), it is stated that the matter was discussed before well-wishers and common friends like one P.R.Chenna Reddy in the residence of accused and accused issued cheque for a sum of Rs.39,00,000/- in favour of complainant on 30.10.2001, in his residence at Bangalore. Contrary to this, complainant has deposed that accused after getting the contents of cheque typed, brought the cheque and handed over cheque to complainant in the house of complainant at Chennai.
9. It is not in dispute that complainant was an income- tax assessee. The complainant has admitted that he had not declared aforestated income in his return. The law is fairly 6 well settled that an income-tax assessee has to declare his income and also show the list of debtors and creditors. The proceedings initiated under section 138 of the Act, in relation to un-escaped income or income not declared by the assessee, cannot be countenanced because such transactions are forbidden by law.
10. As per the averments of complaint and the evidence of complainant, accused was due in a sum of Rs.19,00,000/- to complainant as on 20.05.1997. It is the case of complainant and his evidence that on 30.10.2001, the instant cheque for a sum of Rs.39,00,000/- was issued towards full and final settlement of amount which the accused owed to complainant.
11. Sri S.G.Bhagavan, learned counsel for complainant, relying on judgment of this court, reported in ILR 2006 KAR 4242 (in the case of H.Narasimha Rao Vs. R.Venkataram) would submit that in a proceeding initiated under section 138 of the Act, it is not open to drawer of cheque to contend 7 that cheque was issued to pay time barred debt. There is no bar under law to repay time barred debt.
12. The learned counsel for accused has referred to judgment of Kerala High Court, reported in 2001 Crl.L.J.24 (in the case of Sasseriyil Joseph Vs. Devassia), wherein Kerala High Court has held that section 138 of the Act is attracted only if there is legally recoverable debt and it cannot be said that time barred debt is legally recoverable debt.
13. The learned counsel for accused would further submit that judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001, wherein the Supreme Court has held:-
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No.161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in Criminal Appeal No.212 of 1992 holding inter alia that the cheque in question 8 having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instrument Act is not attracted in the case.
On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instrument Act the judgment of the lower appellate court as confirmed by the High Court is unassailed.
Therefore, the special leave petition is dismissed."
14. The learned counsel for accused would submit the view taken by Kerala High Court in Sasseriyil Joseph's case (supra) that under section 138 of the Act a time barred debt cannot be held as legally recoverable debt, has been confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001.
15. On consideration of aforestated judgments, I find that the view taken by Kerala High Court in Sasseriyil Joseph's case (supra), has been confirmed by the Supreme Court in 9 Special Leave to Appeal (Crl.) No.1785/2001. There are no reasons for me to differ from the view taken by the Kerala High Court and confirmed by the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001.
In the case on hand, even if the averments of complaint and evidence of complainant are accepted at their face value, dishonoured cheque was issued on 30.10.2001 to discharge the debt, which had become due on 20.05.1997. Therefore, I hold dishonoured cheque was issued to discharge time barred debt.
16. The learned trial Judge taking into consideration material discrepancies in the evidence adduced by complainant and also having regard to question of limitation has held that complainant has failed to prove the case beyond reasonable doubt and acquitted accused.
17. The learned counsel for complainant would submit that learned trial Judge has received affidavit evidence of accused, contrary to the judgment of Supreme Court, 10 reported in (2010) 3 SCC 83 (in the case of Mandvi Co- operative Bank Limited vs. Nimesh B.Thakore).
18. The learned counsel for accused would submit that the case on hand has already suffered a remand order, the judgment of acquittal can be sustained dehors affidavit evidence of accused.
19. In the discussion made supra, I have not referred to affidavit evidence of accused. Therefore, the impugned judgment can be sustained dehors affidavit evidence of accused. In the circumstances, there is no need to remand the matter to trial court. There are no reasons to interference with impugned judgment.
20. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN.