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2008 DIGILAW 2304 (MAD)

T. Venkatesan v. Nagarajan

2008-07-08

T.SUDANTHIRAM

body2008
Judgment :- The revision petitioner stands convicted by Judicial Magistrate II, Salem in C.C.No.394 of 2000 for an offence punishable under section 138 of the Negotiable Instruments Act and sentenced to undergo six months simple imprisonment and pay a compensation of Rs.1,50,000/= in default to undergo three months simple simple imprisonment and the said conviction and sentence was confirmed by the Additional District and Sessions Judge(Fast Track Court I), Salem in C.A.No.77 of 2004. Aggrieved by the said conviction and sentence, the petitioner has preferred this revision. .2. The case of the complainant is that on 20.1.1997, the accused borrowed a sum of Rs.1,50,000/= from the father of the complainant and also executed a pro note in favour of the father and subsequently, on 30.12.1997, the accused issued a cheque for Rs.1,50,000/= in favour of the complainants father and on presentation of the cheque in the bank, it has been returned for insufficiency of funds. A notice was given on 7. 1998 and the accused met the father of the complainant and promised to repay the whole amount. Subsequently, the father of the complainant fell sick and he was bedridden. Whileso, on 6. 2000, the accused gave a cheque for Rs.1,50,000/= in favour of the complainant and the cheque was presented in the bank, it returned for insufficiency of funds. The complainant sent a notice on 26. 2000 and inspite of that, the accused did not make any payment nor paid any amount. Hence, the complaint was filed. 3. Learned counsel appearing for the revision petitioner submitted that there is no legal contract between the accused and the complainant and the accused has not borrowed any amount from PW1. There is no liability for the accused towards PW1 and as such, he is not liable under section 138 of the Negotiable Instruments Act. The learned counsel submits that both the courts below failed to consider about this aspect that there was no legal liability for the accused towards the complainant. 4. Learned counsel appearing for the respondent submitted that though the accused had borrowed loan from the complainants father subsequently, he had given a cheque in favour of the complainant and he had entered into a contract with the complainant and thereby he is liable. The learned counsel for the respondent also relied on the decision of this High Court in NIZMATHUALLAH, A.R.M. v. VADUGANATHAN (2007(5) CTC 488). 5. The learned counsel for the respondent also relied on the decision of this High Court in NIZMATHUALLAH, A.R.M. v. VADUGANATHAN (2007(5) CTC 488). 5. This court considered the submission made by both the parties. Admittedly, in this case, the accused had borrowed amount only from the father of the complainant. Therefore, there is a liability for the accused towards the father of the complainant. The question is whether, if a cheque is given to a son for the loan obtained from his father, is it possible for the son to take legal action against the borrower. .6. As per the explanation under section 138 of the Negotiable Instruments Act, the "debt or other liability" means a legally enforceable debt or other liability. Admittedly, the accused had not borrowed amount from the complainant and he is not owing to pay any amount to him though the accused has to pay to the father of the complainant. It is not the case of the complainant that the promissory note which was executed in favour of the father of the complainant has been made over to the complainant, and father has not given any evidence to that effect. In the absence of any such evidence, it cannot be stated that the accused is liable to pay to the complainant. 7. Even as per section 25 of the Indian Contract Act, 1872, an agreement made without consideration is void and if only debt is barred by limitation and the promise is made in writing and signed by the person to be charged therewith or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. 8. In this case, the complainant is not the creditor. Therefore, section 25 of the Indian Contract Act does not come to the rescue of the complainant. The decision reported in 2007(5) CTC 488 cited supra is not applicable to the facts of this case. As the complainant is not the creditor and as the accused has no debt or liability towards the complainant, the ingredients of section 25 of the Indian Contract Act are not attracted. 9. Therefore, this court has to hold that conviction and sentence confirmed by the appellate court is improper. As the complainant is not the creditor and as the accused has no debt or liability towards the complainant, the ingredients of section 25 of the Indian Contract Act are not attracted. 9. Therefore, this court has to hold that conviction and sentence confirmed by the appellate court is improper. The conviction and sentence on the accused is set aside and the revision is allowed.