TMI Blog2024 (3) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... garding giving hand loan of Rs.4,50,000/- to the accused. Complainant has also failed to establish the nexus between payment of Rs.3 Lakhs by way of cheque on 22.07.2009 - Ex.P6 to the transaction covered under cheque - Ex.P1. Complainant in the cross- examination has given again totally different version that he has given money of Rs.4,50,000/- in three installments to the accused. However, to evidence the said fact there are no any documents or requisite evidence to prove the said fact. The said circumstance would create serious doubt in the claim of complainant that accused has issued cheque in question - Ex.P1 for lawful discharge of debt. It is in the evidence of DW.1 regarding complainant taking advance of Rs.70,000/- for sale of open space belongs to his father-in-law. The documents at Exs.D2 to D7 would go to show that accused and her husband is known to complainant and there are transaction between complainant and accused. Further, accused was also surety for the loan transaction of complainant in the Society. The deposit of Rs.3 Lakhs by way of cheque shown in Ex.P6 is dated 22.07.2009 would go to show that there was earlier transaction of complainant with accused. Compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and undelivered envelope sent through RPAD is produced at Ex.P5 and the notice contained in the said envelope was opened and marked as Ex.P5(a). If the above referred documents are perused and appreciated with oral testimony of PW.1, then it would go to show that complainant has complied all the necessary legal requirements in terms of Section 138(a) to (c) of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as N.I.Act ). Complainant has filed a complaint on 10.06.2013 within a period of one month from the date of accrual of cause of action in terms of Section 142(1)(b) of N.I.Act. Therefore, statutory presumption in terms of Sections 118 and 139 of the NI Act will have to be drawn in favour of complainant. 6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance of cheque with signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has claimed that on receipt of intimation of dishonour of cheque Ex.P2 on 04.04.2013, issued demand notice dated 29.04.2013 - Ex.P3 through RPAD. The undelivered postal envelope bears the endorsement of the postal authority that the addressee 'not claimed' the consignment in spite of service of Ex.P5. The Trial Court by order dated 10.10.2013, has ordered to issue summons to accused through RPAD on the same address as given in the complaint. The postal endorsement would go to show that the addressee has refused to receive the consignment. Accused after appearing in this case has not disputed the correctness of the address shown in the complaint. DW.1 in her examination-in-chief has stated that she is available in the house always and never refused the notice. DW.1 has stated in her evidence that she is residing at Batrekere, Mangaluru. Therefore, in view of the aforementioned postal endorsement and the evidence of PW.1, it is evident that the accused is residing at the address given in the Complaint. When the notice is sent to the correct address of the accused through registered post and the same is returned with postal endorsement that addressee 'not claimed' th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station , due service has to be presumed. Therefore, in view of the principles enunciated in the judgment and also the aforementioned evidence on record, the contention of accused that demand notice - Ex.P3 is not duly served to the accused cannot be accepted. 13. The accused has not replied to the demand notice issued by the complainant. Accused after appearance in this case has also not made any application disclosing the defence before seeking permission to cross- examine PW.1. Thus, the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal necessity. I have paid her a sum of Rs.3,00,000/- (Rupees three lakhs only) by way of cheque bearing No.00443690 drawn on Canara Bank, Permude dated 22.07.2009 and remaining amount of Rs.1,50,000/- (One Lakh fifty thousand only) paid in cash. 3. I say that, in the complaint filed by me in this case I have wrongly mentioned that I have paid the amount to the accused in the month of June 2012 as by hand loan and also in the notice issued by me dated 29.04.2014 in that also wrongly mentioned that I have paid the amount in cash on 15.06.2012 instead of Rs.3,00,000/- (Rupees three lakhs only) by way of cheque bearing No.00443690 drawn on Canara Bank, Permude dated 22.07.2009 and remaining amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) paid in cash. 18. If the above referred evidence of PW.1 in examination-in-chief is perused, then it would go to show that complainant has improvised his contention than what he has pleaded in the complaint. Whereas the complainant in the cross-examination on page No.7 in last para has stated that he has paid cash to accused in three installments. But he do not remember when he has paid the money by installments. The said material evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld as under:- In view of Sections 118 and 139 of the Negotiable Instruments Act, Section 25(3) of the Contract Act, 1872 and in the presence of a documentary evidence which might amount to acknowledgment reviving the period of limitation, the present case was not one where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. However, these are matters to be agitated before the Magistrate by way of defence of the respondent. But at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability which was not legally enforceable, was clearly illegal and erroneous. 23. Learned counsel for complainant also seeks to rely on the Division Bench Judgment of Hon'ble Bombay High Court in Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt reported in 2013 (2) Mh.L.J., whereunder the matter was referred to Division Bench for deciding the two questions formulated by the learned Single Judge under his Judgment and Order dated 23.12.2008, which reads as under:- (i) Does the issuance of a cheque in repayment of a time barred debt amount to a written promise to pay the said debt within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .9.1998 has to be set aside and is hereby set aside. The matter is remanded to the trial court to decide, based on the evidence already recorded, whether the complaint has proved the ingredients of offence punishable under Section 138 of the Negotiable Instrument Act 1881. Therefore, in view of the principles enunciated in the aforementioned Judgment, it is evident that issuance of a cheque on a time barred debt is enforceable in terms of Section 25(3) of the Indian Contract Act and such debt is legally enforceable debt within the meaning of Section 138 of the NI Act. In the present case, according to the evidence of PW.1 he has paid Rs.3 Lakhs on 22.07.2009 by way of cheque and Rs.1,50,000/- by way of cash as on the date of issuance of cheque on 02.04.2013, it was barred by time. However, in terms of the judgment of Hon'ble Apex Court and Hon'ble Bombay High Court referred supra, the time barred debt is legally enforceable debt. 25. The fact alleged by complainant in the complaint that he has paid Rs.4,50,000/- as hand loan to the accused in the month of June 2012. The said statement is further reiterated in the demand notice - Ex.P3. However, the evidence of PW.1 in exami ..... X X X X Extracts X X X X X X X X Extracts X X X X
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