TMI Blog2021 (2) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... ice was also issued stating that, accused has borrowed the loan and Ex.P.1-cheque issued in discharge of the said loan was dishonoured. The complainant has also contended in written complaint that, the accused issued the cheque in discharge of his liability of borrowing the loan from complainant-Bank. In fact the evidence of the Manager of the Bank /PW.1 is also to that effect which is admittedly not true. Now complainant Bank has totally given 'U' turn to the contents of the complaint and legal notice, in cross-examination of PW.1 stating that the accused being a Karta of the family has admitted the loan borrowed by his father and for discharge of that loan he has issued the cheque which is not their case at all. The party cannot be permitted to plead one case in complaint evidence and document and try to take shelter in cross-examination taking totally new stand which is not pleaded - The father of the accused died in the year 2004. If at all there was any such loan it has become time barred during his life time only. Defense evidence of accused totally falsify the case of the complainant. The slightest presumption even if any for issuance of cheque, stood clearly rebutte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he J.M.F.C Court alleging that, the accused has committed an offence punishable under section 138 of Negotiable Instrument Act 1881 (Hereinafter referred for short as N.I Act .) 4. It is the case of the complainant that, the complainant is co-operative Bank involved in Banking business. The accused is a member of complainant- Bank and availed loan from the Bank, but failed to repay the same. When the complainant-Bank approached accused and insisted for payment of dues, he issued cheque bearing No.022627 dated: 24-05-2007 for ₹ 3,28,000/- drawn in favour of the Bank. The said cheque was presented through its banker D.C.C Bank Bidar, but it was returned dishonoured with endorsement that funds insufficient . An intimation in this regard was received on 10-07-2007. Then the complainant-Bank issued demand notice on 30-07- 2007. The accused did not reply the aforesaid notice, nor repaid the amount. Hence the complaint was lodged. 5. The accused appeared before the trial court. The trial court put the substance of accusation to accused and recorded the plea of accused. The accused pleaded not guilty and claimed to be tried. 6. The complainant-Bank got examined its Manager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is admitted. The cheque was presented and it was returned with endorsement funds 'insufficient'. The cheque amount is for ₹ 3,28,000/-. The legal notice is served on accused. The availment of loan by the father of the accused is admitted. So for future liability the said cheque is issued. Accused has undertaken to discharge all the liability of his father. Now accused cannot contend that, his liability is only to the extent of his 1/3rd share of ₹ 1,50,000/- i.e., only ₹ 50,000/- as there were three legal heirs. Such a contention is not permissible now. The accused is educated person, he himself has voluntarily issued cheque. There is no force or undue influence on him for issuance of the cheque. Now accused is estopped from contending contrary to what has been stated by him once cheque is issued knowing fully its consequence. The offence under section 138 of N.I Act is committed if the cheque is returned with endorsement as funds insufficient or exceed arrangements . The accused cannot contend that, the other legal heirs are also liable, when once he has issued cheque. The cross-examination of PW.1 does not take away the right of the Bank to recover th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .I Act. Further no documents or statement of Bank account in respect of said loan are produced to show that, what was the exact amount borrowed and what was payable. Therefore, in the absence of any such oral or documentary evidence in support of the complainant's case, the trial court has rightly appreciated the evidence in a proper perspective and acquitted the accused. There is no error or illegality in the Judgment of the trial court. The learned counsel supports the Judgment of the trial court and prays to dismiss the appeal. 13. I have perused the Judgment, records of the trial court and appeal Memo and the decision relied on by the learned counsel for the appellant/complainant. 14. From the above materials, evidence and arguments the point that would arise for my consideration are as under:- 01. Whether the impugned Judgment is perverse, illegal and not based on well settled principles regarding appreciation of evidence in cases arising out of dishonour of cheque commonly known as Cheque Bounce case under section 138 Negotiable Instrument Act 1881? 15. My answer to the above point is in negative for the following reasons. 16. The complainant in his wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the father of the accused had borrowed ₹ 1,50,000/- No account extract in respect of said loan was produced. PW.1 has also admitted that, he do not know when the death of the father of the accused came to their knowledge. PW.1 has also admitted that, Ex.P.1 cheque is related to accused father loan. PW.1 has also stated that, he do not know how many legal heirs to the accused father. He has also admitted that, Bank has not produced any Bank statement or record to show that the accused father was due a sum of ₹ 3,28,000/- PW.1 has admitted that the documents executed by the father of the accused were in the Bank. But they are not produced before Court. He has admitted that, complainant has sent legal notices to accused, one Rajesh and another Dr. Geeta. PW.1 has also stated that said notice were issued more than three years after the death of the father of the complainant. PW.1 has admitted that, the accused after receipt of the notice came to the Bank and met them. But complainant Bank has not taken any document in writing from the accused stating that, accused is liable for the loan of his father. PW.1 has no documents to show that, accused and others have come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Even the contents of the notice are false. Therefore no statutory presumption under N.I Act can be raised in favour of the complainant-Bank when a false contention is taken and true facts are suppressed before the Court. 19. The complainant has examined one more witness Mr. Mohammed Salim as PW.2. He has given totally new version contrary to the written complainant contents and evidence of PW.1 before the trial court. It appears that, the complainant-Bank came to know that the averments in the complaint, evidence of PW.1 and notice are not true when the PW.1 was cross-examined by the accused side. In order to make out some case and fill up lacuna in their case this PW.2 is examined. PW.2 has stated in his evidence that, the accused and his family members voluntarily agreed to make the payment. He states that, the accused personally came to the Bank when the notice was issued in the year 2007 and issued cheque in favour of the Bank. In his cross-examination PW.2 admitted that, the accused father was a leader and he was financially sound person. PW.2 clearly admitted that, he do not know which type of loan was given to the father of the accused. PW.2 does not know whether in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loan and Ex.P.1-cheque issued in discharge of the said loan was dishonoured. The complainant has also contended in written complaint that, the accused issued the cheque in discharge of his liability of borrowing the loan from complainant-Bank. In fact the evidence of the Manager of the Bank /PW.1 is also to that effect which is admittedly not true. Now complainant Bank has totally given 'U' turn to the contents of the complaint and legal notice, in cross-examination of PW.1 stating that the accused being a Karta of the family has admitted the loan borrowed by his father and for discharge of that loan he has issued the cheque which is not their case at all. The party cannot be permitted to plead one case in complaint evidence and document and try to take shelter in cross-examination taking totally new stand which is not pleaded. No Bank statements or account extract in respect of loan was produced to show that, what was the loan borrowed by accused father, what was the amount due, what is the basis for arriving at a figure of ₹ 3,28,000/- as amount due, is not forthcoming. In fact according to the complainant/PW.1 the loan was of the year 2001. So it has already bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards a legally recoverable debt. It was issued as a security for the loan which he had borrowed from the complainant. This is further fortified by the judgment relied on by the counsel for the appellant himself in Sampelly Satyanarayana Rao (supra), which reads that, If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. Hence, it is proved that as on the date of issuance of the blank cheque, there was no legal liability of the accused to pay any amount to the complainant, which is evident from the evidence of PW-1 the Manager of the bank himself. Further, the complainant - Bank has also not produced any account extract relating to the loan account of the accused. 24. The learned counsel for the complainant tried to make out a case under section 25 (3) of the Indian Contract Act 1872 stating that as the accused issued the cheque it amounts to admission on the part of the accused to pay the time barred debt. But such a contention is not legally tenable. It is not the case of the complainant or the evidence of PW.1 or contents of the legal notice that the cheque was issued in disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assam and another at para No.11 it is held as under: 11. We have no hesitation in answering that question in the affirmative. The facts as narrated above and as held proved by the trial Court and the appellate court, leave no manner of doubt, that Nazimul Islam had received an amount of rupees ten lakhs from the complainant in connection with the agreement executed between the two. It is also not in dispute that upon termination of the agreement, the amount paid to Nazimul Islam was refundable to the complainant and that Nazimul Islam had agreed to refund the same within one month. The promissory note executed by Nazimul Islam contained an unequivocal acknowledgment of not only the debt/liability aforementioned but promised to liquidate the same within one month with interest at the bank rate. Five cheques handed over were to be returned but only upon payment of the amount in question. Such being the fact situation, it cannot be said that the cheques had nothing to do with any debt or other liability. As a matter of fact, the existence of the debt or liability was never in dispute. On the contrary, it was acknowledged by Nazimul Islam who simply sought one month's time t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 492 held that under sections 139, 118(a) and 138 of Negotiable Instrument Act existence of debt or liability shall proved in the first instance by complainant, thereafter the burden of proving contrary shifts on the accused. Here in this case the complainant has totally failed to prove the existence of any debt or any other liability by the accused when the said contention is neither pleaded in the complaint and notice, nor the evidence is led. Therefore the said decisions are also not helpful to the complainant argument. 29. The contention of learned counsel for complainant that, there is no bar under law to repay the time barred debt and it is not open to the drawer of the cheque to contend that he is not liable as the debt was time barred is also not tenable as such contention is either pleader or any legally admissible evidence was led by complainant-Bank. Such time barred debt cannot be called as legally recoverable debt so as to attract penal provision under section 138 of N.I Act. In this regard it is necessary to refer the principles of law stated by Hon'ble Supreme Court and other High Courts. 30. The Kerala High Court in a decision reported in 2001 Crl.L.J 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Gujarath in case of Jayanthilal Maganlal Brahmbhatt Vs State of Gujarat in Criminal Appeal No.35/2008 decided on 14-02-2013 referred the decision of Bombay High Court in case Smt. Ashwini Santosh Bhatt Vs Jeevan Divakar and also the Judgment of the Hon'ble Supreme Court in case of Krishna Janardhan Bhat Vs Dattatraya G Hegde reported in 2008 (4) SCC 54 wherein at para No.13 it is held as under: Thus, for the purpose of falling within the ambit of Section 138 of the Act, one of the ingredients which is required to be satisfied is that there is legally enforceable debt. In the facts of the present case, as noted earlier, the amounts in question had been paid during the period 1991 to 1997, under the circumstances, the period of limitation which is three years had clearly expired by the end of the year 2000. Therefore, the cheques which were issued in the year 2002, evidently were issued in respect of time barred-debts. In view of the explanation to section 138 of the Act, a debt or liability referred to in section 138 of the Act means a legally enforceable debt. Under the circumstances, even if the case of the complainant is accepted that such cheques had, in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is over, which is not the case in hand. 26. Further, it has been held time and again by the Apex Court as well as by the various High Courts that mere giving of a cheque, without anything more, will not revive a time-barred debt, because cheque has to be given, as contemplated by the explanatory, in discharge of a legally enforceable debt. In this regard, it may be relevant to take note of the order dated 10.9.2001 relied upon by the learned counsel for the respondent No.2 titled Sasseriyil Joseph v. Devassia (supra) wherein, in a similar case, it has been held by the Supreme Court that, a cheque which has been issued by the accused for a due which was barred by limitation, the penal provision under Section 138 of the NI Act is not attracted. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder: - We have heard ....... 27. In Vijay Polymers Pvt. Ltd. Anr. v. Vinnay Aggarwal (supra), relying upon the judgment of the Supreme Court in Sasseriyil Joseph (supra), it has been observed that, cheques issued for a time-barred debt would not fall within the definition of 'legally enforceable debt', which is the essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, 1963 and promise to pay under Section 25(3) of the Contract Act, 1872. Both have got to be in writing. In the case of first, it has got to be before expiry of the period and in the case of second, it could be beyond the period. In view of the principles stated in the above referred decision, it is evident that the provisions of Section 25(3) of the Indian Contract Act, 1872 is not applicable to the facts and evidence in this case. 37. Further as per section 13 of N.I Act negotiable instrument means a promissory note bill of exchange , or cheque payable either to order or to bearer. The definition of promissory note as stated in section 4 of the N.I Act indicates that, it contains an unconditional undertaking signed by the maker, to pay a sum of money only to, or to the order of, a certain person, or to the bearer of instrument. The definition of bill of exchange as stated in Section 5 and the definition of cheque contain only an unconditional order which clearly distinguish them from the definition of promissory note. In promissory note there must be an express undertaking upon the face of instrument to pay the money. Therefore in promissory there is uncondit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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