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2015 DIGILAW 1245 (MAD)

Sangeetha v. A. Raja

2015-03-03

R.MALA

body2015
Judgment 1. This Criminal Appeal arises out of the judgment of acquittal dated 01.04.2008 made in C.C.No.228 of 2006 on the file of the learned Judicial Magistrate No.I, Salem (Salem District). 2. The appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that on 02.02.2003, the respondent/accused borrowed a sum of Rs.2,00,000/- from the appellant/complainant and agreed to repay the same with interest in 11 months and on the same day, they entered into a loan agreement/Ex.P.6. Since he has not repaid the money, he issued a cheque/Ex.P.1. dated 27.03.2006 for a sum of Rs.2,00,000/- drawn in Canara Bank, Erumapalayam Branch. When it was presented for encashment in Bharat Overseas Bank, Salem Branch, it was returned as “insufficient funds” as per return memo/Ex.P.2. The same was intimated by the Bharat Overseas Bank to the appellant/complainant and it was marked as Ex.P.3. So the appellant/complainant on 13.04.2006 issued Ex.P.4/statutory notice to the respondent under Section 138 of Negotiable Instruments Act, which was evidenced by Acknowledgment Card/Ex.P.5. Even though the respondent/accused received the notice, neither he repaid the money nor sent any reply. Hence, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act. 3. The trial Court has taken cognizance of an offence after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and Exs.P.1 to P.6 on the side of the complainant and on the side of the respondent no oral and documentary evidence was marked. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act. 4. Challenging the judgment of acquittal passed by the trial Court, the learned counsel for the appellant/complainant submitted that the Trial Court has acquitted the respondent/accused stating that the cheque/Ex.P.1 has been given for discharging time barred debt and so there is no evidence to show that the cheque has been issued for discharging legally subsisting liability. He would submit that the issuance of cheque/Ex.P.1 has been admitted, which was presented for encashment and that has been returned as “Insufficient Funds” as per Return memo/Ex.P.2 and then, Statutory Notice under Section 138 (b) of Negotiable Instruments Act has been issued under Ex.P.4, which was evidenced from acknowledgment card/Ex.P.5. He would submit that the issuance of cheque/Ex.P.1 has been admitted, which was presented for encashment and that has been returned as “Insufficient Funds” as per Return memo/Ex.P.2 and then, Statutory Notice under Section 138 (b) of Negotiable Instruments Act has been issued under Ex.P.4, which was evidenced from acknowledgment card/Ex.P.5. Even though notice has been received, the respondent/accused neither repaid the money nor sent any reply. Hence, complaint has been filed. The Trial Court has held that as per the loan agreement/Ex.P.6, which is dated 02.02.2003 and the cheque/Ex.P.1 is dated 27.03.2006 i.e. after three years and hence, the cheque has been issued for time barred debt and it is not for discharging legally subsisting liability after following the decision reported in Rajendra Finance, rep. By Power of Attorney Mr. A.R.G. Laxmi Narayana v. S. Alousius Thairiyanatham 2005 (1) CTC 416 and also Joseph v. Devassia 2002 (1) MWN (Cr.) DCC (Ker) 118 . He would further submit that in the loan agreement, the date has been mentioned as 02.02.2003 and in that agreement, time fixed for repayment of loan is 11 months, then the cause of action arose only after 11 months. Therefore, from that date onwards the period of limitation is three years as per Article 28 and 34 of the Limitation Act and hence, the debt is not time barred. To substantiate his argument, he relied upon the decision of this Court reported in Meiyappan Servai v. Meenakshi Achi (1970) 1 MLJ 156 . Hence, he prayed for convicting the respondent/accused. 5. Even though the matter was posted for several hearings for respondent arguments, there is no representation on behalf of the respondent. Notice has been issued and even after receipt of notice, he has not appeared. 6. Considered the submissions made by the learned counsel appearing for the appellant and perused the typed set of papers. 7. The case of the appellant/complainant is that the respondent herein has borrowed a sum of Rs.2,00,000/- and agreed to repay the said amount within 11 months from the date of execution of the loan agreement dated 02.02.2003. Since he has not repaid the amount, he issued a cheque/Ex.P.1 dated 27.03.2006, which was presented for encashment and that has been returned as insufficient funds . 8. Now, the only point to be decided is whether the cheque/Ex.P.1 has been issued for discharging legally subsisting liability? Since he has not repaid the amount, he issued a cheque/Ex.P.1 dated 27.03.2006, which was presented for encashment and that has been returned as insufficient funds . 8. Now, the only point to be decided is whether the cheque/Ex.P.1 has been issued for discharging legally subsisting liability? It is appropriate to consider the loan agreement/Ex.P.6, which is not disputed and in that, it was specifically mentioned as 11 months for repayment of the amount. It is also appropriate to consider Article 28 and 34 of the Limitation Act, wherein it was stated as follows: Article Description of suit Period of Limitation Time from which period begins to run 28 On a single bond, where a day is specified for payment Three years The day so specified 34 On a bill of exchange or promissory note payable at a fixed time after sight or after demand. Three years When the fixed time expires. 9. At this juncture, It is also appropriate to consider the decision relied upon by the learned counsel appearing for the appellant reported in Meiyappan Servai v. Meenakshi Achi (supra) , wherein it was held where as time-limit is fixed for the repayment of money in a simple money bond, limitation will start only from that date. It is appropriate to incorporate the relevant portion, which reads as follows: “It may be that the 12 months period stipulated was for the repayment of the entire mortgage amount of Rs.750 and that out of this amount, only a sum of Rs.400 alone had been paid ; but it appears to me that this circumstance can make no difference whatsoever and that the respondent is entitled to insist that he can pay the sum of Rs.400 at the end of 12 months prescribed for the repayment of the loan. Where a period is stipulated for the repayment of the entire sum it cannot be said that the said period will not enure for the repayment of a portion of the sum actually paid under the contract. Take for instance, a bond which recites that a sum of Rs.200 had been paid and stipulates that it was repayable in the two years from the date of the bond and it is conceded that only a sum of Rs.1500 had been actually paid. Take for instance, a bond which recites that a sum of Rs.200 had been paid and stipulates that it was repayable in the two years from the date of the bond and it is conceded that only a sum of Rs.1500 had been actually paid. Can it be pleaded in a suit for recovery of Rs.1500 under that bond that the period of two years would not enure for that sum and that limitation should be reckoned from the date of the advance? The answer is ‘no’; and the case is much stronger where, as in the present instance, the petitioner is a defaulter.” 10. It is an admitted fact that after receipt of the notice, the respondent has not given any reply. In the cross examination of P.W.1, it was stated that both the appellant and the respondent are relatives. The respondent has paid first two months interest alone and after that, interest was not paid and the appellant has not given any receipt for interest. A suggestion was posed to her that since she has demanded higher rate of interest, the respondent has not paid that amount and she preferred a complaint, was denied by her. Further, one more suggestion was posed to her that the cheque has been given as security for the loan obtained for the title deed in respect of the house property and she has utilized the same, was denied by her. One more suggestion was posed to her that the respondent has repaid the entire amount and to demanding higher rate of interest, she filed the complaint was denied by her. It is the duty of the person who pleaded the discharge must prove the same. To prove the discharge, the respondent/accused neither filed any scrap of paper nor let in any evidence to show that the discharged the same. 11. Considering the Article 28 and 34 of the Limitation Act and also the decision stated supra, I am of the view that in the loan agreement, it is stated as 11 months for repayment of loan. So, after 11 months from Ex.P.6/Loan Agreement dated 02.02.2003 only, the cause of action arose. The Cheque/Ex.P.1 has been issued on 27.03.2006, i.e. well within three years as per Article 28 and 34 of the Limitation Act. So, after 11 months from Ex.P.6/Loan Agreement dated 02.02.2003 only, the cause of action arose. The Cheque/Ex.P.1 has been issued on 27.03.2006, i.e. well within three years as per Article 28 and 34 of the Limitation Act. The Trial Court has wrongly acquitted the accused on the ground that cheque/Ex.P.1 has been issued for time barred debt. Since the Trial Court has not properly appreciated the legal position and also the document/Ex.P.6, I am of the view that the judgment of acquittal is perverse. Therefore, the judgment of acquittal passed by the trial Court is hereby set aside. 12. In fine, • This Criminal Appeal is allowed, setting aside the judgment of acquittal dated 01.04.2008 made in C.C.No.228 of 2006 on the file of the learned Judicial Magistrate No.I, Salem (Salem District). • The respondent/accused is found to be guilty under Section 138 of Negotiable Instruments Act and hence, convicted under Section 138 of Negotiable Instruments Act. • For appearance of the respondent/accused before this Court for questioning of sentence, post this appeal on 18.03.2015. The appellant is directed to issue notice to the respondent for his appearance on 18.03.2015. Appeal allowed.