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2006 DIGILAW 661 (KAR)

K. Balachandra v. Dinesh Prabhu

2006-08-14

K.BHAKTHAVATSALA

body2006
JUDGMENT K. Bhakthavatsala, J.—This is complainant's appeal filed under Section 378(4) of Code of Criminal Procedure, challenging the judgment dated 28.2.2002 made in C.C. No. 969 of 2001 on the file of Additional Civil Judge (Junior Division) and JMFC, Puttur, Dakshina Kannada, acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act. 2. Though the notice has been served personally on 20.4.2002, the respondent has not entered appearance in this case. The Appellant/complainant is represented by Sri. K.M. Nataraj. 3. Heard arguments. 4. The brief facts of the case leading to the filing of the appeal may be stated as under: On 20.1.2001, the Appellant/complainant filed a private complaint under Section 200 of Code of Criminal Procedure, against the respondent/accused, alleging that the complainant gave personal loan of Rs. 4,00,000/- to the accused who promised to repay the same in a short time and the accused had issued cheque dated 29.11.2000 drawn on Syndicate Bank, Puttur Main Branch, but when the cheque was presented for collection, it was dishonoured on account of insufficient funds. After the cheque was dishonoured, the complainant issued a statutory demand notice to the accused. Though the statutory notice was duly served on the accused on 18.12.2000, he has neither replied nor paid the amount. Therefore, the accused has committed an offence under Section 138 of Negotiable Instruments Act. The respondent/accused entered appearance before the Trial Court. In support of the case of the complainant, he has got himself examined as P.W.1 and got marked Exs.P.1 to P.6. The accused has denied incriminating circumstances appearing in the evidence of prosecution. The accused has not adduced defence evidence. The learned Magistrate, after hearing arguments and for the reasons stated in the impugned judgment, dismissed the complaint and acquitted the accused. This is impugned in this appeal. 5. The learned Counsel for the Appellant/complainant submits that the learned Magistrate failed to notice the presumptions available in favour of the holder in due course under Section 118 of the Negotiable Instruments Act. He also contends that the respondent/accused has not denied issuance of cheque and therefore, the complainant is entitled for the benefit of presumption and the burden is shifted on the accused to rebut. He also contends that the learned Magistrate committed an error in holding that the complainant failed to prove that he had sufficient funds to lend. 6. He also contends that the respondent/accused has not denied issuance of cheque and therefore, the complainant is entitled for the benefit of presumption and the burden is shifted on the accused to rebut. He also contends that the learned Magistrate committed an error in holding that the complainant failed to prove that he had sufficient funds to lend. 6. In the light of the arguments addressed by the learned Counsel for the Appellant/accused, the only point that arises for consideration is: Whether the impugned order is sustainable in the eye of law? 7. My answer to the above point is in the negative for the following reasons: Keeping in view the presumption under Section 118 of the Negotiable Instruments Act and when the accused had neither replied to the statutory demand notice nor adduced any evidence in support of his case, learned Magistrate raising a doubt and holding that the debt was time-barred and the complainant had no sufficient funds to lend a sum of Rs. 4,00,000/- to the respondent/accused and dismissing the complaint, is contrary to the principles laid down. It is pertinent to mention that a complaint cannot be dismissed on the ground that the complainant failed to prove sources to lend. Admittedly, the accused has issued a cheque dated 29.11.2000 drawn in favour of the complainant for a sum of Rs. 4,00,000/-. Under such circumstances, heavy burden lies on the accused to disprove the case of the complainant. According to the provisions of the Law of Contract, no consideration is required to repay the time-barred debt. The complainant has not mentioned in his complaint the date on which he lent a sum of Rs. 4,00,000/- to the accused. The Accused is known to the complainant since about 15 years. In the evidence of P.W.1/the complainant, he has deposed that he was a Civil Engineer by profession and he was working abroad from 1991 to December, 1999 and during the month of December, 1999, the complainant lent a sum of Rs. 4,00,000/- to the respondent/accused. The cheque in question is dated 29.11.2000. Therefore, the debt cannot be a time-barred debt. Even if it is a case of time-barred debt, if the debtor agrees to repay such time-barred debt after expiry of three years, no fresh consideration was required when such a promise is made in express terms. On both grounds, the complainant is entitled to succeed. Therefore, the debt cannot be a time-barred debt. Even if it is a case of time-barred debt, if the debtor agrees to repay such time-barred debt after expiry of three years, no fresh consideration was required when such a promise is made in express terms. On both grounds, the complainant is entitled to succeed. The complainant has proved that the accused has committed an offence under Section 138 of the Negotiable Instruments Act. But the learned Magistrate has raised unwarranted questions and dismissed the complaint. The impugned order is not sustainable in the eye of law. 8. Therefore, I pass the following order: The appeal is allowed and the impugned order dated 28.2.2002 in C.C. No. 969 of 2001 on the file of JMFC, Puttur, is set aside. Consequently, the accused is convicted under Section 138 of the Negotiable Instruments Act and sentenced the accused to pay a fine of Rs. 4,60,000/-, failing which, he shall undergo simple imprisonment for a period of six months. If the fine amount is recovered, the complainant shall be paid a sum of Rs. 4,50,000/- as compensation.