Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 984 (KAR)

S. S. Ramesh v. K. Lokesh

2023-08-16

RAJENDRA BADAMIKAR

body2023
JUDGMENT 1. This revision petition is filed by the accused under Sec. 397 read with Sec. 401 of Cr.P.C., challenging the judgment of conviction and order of sentence passed by the XII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No .3892/2008 dtd. 29/12/2011 and confirmed by the Fast Track Court-IV, Bengaluru City in Crl.A.No.75/2012 dtd. 22/4/2013 . 2. The brief factual matrix leading to the case are that the complainant is a businessman and accused is known to him and he used to get financial assistance from the complainant. It is further asserted that due to business needs, the accused has taken a hand loan of Rs.5, 00, 000.00 from the complainant in the year 2002 agreeing to repay the said amount with interest @ 24% per annum. It is also alleged that the accused failed to repay the loan amount as well as interest and ultimately the accused and complainant have arrived at a settlement on 7/12/2007 and accused agreed to pay a sum of Rs.8, 60, 000.00 for discharging all his debt of Rs.5, 00, 000.00 with interest thereon and issued a cheque for Rs.8, 60, 000.00 drawn on State Bank of India, Tyagarajanagara Branch, Bengaluru. When the said cheque was presented, it bounced for insufficiency o f funds and hence the complainant has issued a legal notice . The accused did not repay the said amount and hence the complaint came to be lodged under Sec. 200 of Cr .P.C., for the offence punishable under Sec. 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I .Act' for short). 3. The learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He denied the accusation under Sec. 138 of N.I .Act. 4. The complainant got examined himself as PW1 and a witness was examined on behalf of the complainant as PW2. He has also placed reliance on 6 documents marked as Exs.P1 to P6. After conclusion of the evidence of the complainant, the statement of accused under Sec. 313 of Cr.P.C., is recorded to enable him to explain the incriminating evidence appearing against him in the case of complainant. The case of the accused is of total denial. Further the accused has got examined himself as DW1 and he placed reliance on 22 documents marked at Exs.D1 to D22. 5. The case of the accused is of total denial. Further the accused has got examined himself as DW1 and he placed reliance on 22 documents marked at Exs.D1 to D22. 5. After hearing the arguments and after appreciating the oral and documentary evidence, learned Magistrate has convicted the accused for the offence punishable under Sec. 138 of N.I .Act and imposed fine of Rs.10, 10, 000.00 with default clause o f 6 months simple imprisonment. 6. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the Fast Track Court-IV, Bengaluru City in Crl.A.No.75/2012 and the learned Sessions Judge after re-appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial court. Against these concurrent findings, this revision petition is filed by the revision petitioner/accused. 7. Heard the arguments advanced by the learned counsel for the revision petitioner/accused and learned counsel for the respondent/ complainant and perused the records. 8. It is submitted by the learned counsel for the revision petitioner that the allegations of the complaint disclose that the loan was advanced in the year 2002 and the matter was said to have been settled before the police in the year 2007. As such the transaction is barred by law of limitation. He would further assert that the documents produced by the accused would disclose that the accused has lodged number of complaints against the complainant for harassing him by doing money lending business and before the police, the complainant has admitted that he has received blank cheques from the accused and the complainant had no lending capacity to the tune of Rs.5, 00, 000.00 in the year 2002. He would contend that since the transaction itself is barred by law o f limitation, question of enforcing the time barred debt does not arise and it cannot be termed as a legally enforceable debt. Hence he would contend that both the courts have committed a serious error in convicting the revision petitioner/accused without properly appreciating the oral and documentary evidence. Hence he would contend that both the courts have committed a serious error in convicting the revision petitioner/accused without properly appreciating the oral and documentary evidence. He would further assert that the judgment of conviction and order of sentence passed by the court below is perverse and arbitrary which was resulted in miscarriage of justice and hence he would seek for allowing the revision by setting aside the impugned judgment of conviction and order of sentence passed by both the courts below. 9. Per contra learned counsel for the respondent/complainant would support the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court. He would contend that the lending capacity of the complainant was never challenged and the cheque belongs to the accused and he admits his signature and as such the presumption under Sec. 139 of N.I .Act requires to be drawn in favour of the complainant. He would further asserts that though the transaction was of the year 2002, in 2005 the accused has attempted to settle the issue, which is required to be treated as an acknowledgment and he would contend that the ground urged now cannot be taken note of and it cannot be termed as barred by law of limitation. Hence he would seek for dismissal of the revision petition. 10. Having heard the learned counsel for the revision petitioner/accused and the learned counsel for the respondent/complainant, now the following point would arise for my consideration: "Whether the judgment of conviction and order of sentence passed by the trial Court and con firmed by the appellate are perverse, arbitrary and erroneous so as to call for any interference by this court?" 11. It is the specific contention of the complainant that he is well conversant with the accused and due to business requirement, the accused has availed a hand loan of Rs.5, 00, 000.00 from him in the year 2002 and he has also agreed to repay the said amount with interest @ 24% per annum. He would also asserts that he did not repay the said amount and in the year 2005, he agreed to settle the matter, but ultimately on 7/12/2007, the matter was settled for Rs.8, 60, 000.00 and he issued a cheque. 12. He would also asserts that he did not repay the said amount and in the year 2005, he agreed to settle the matter, but ultimately on 7/12/2007, the matter was settled for Rs.8, 60, 000.00 and he issued a cheque. 12. On the contrary, the accused has disputed his liability and contended that earlier he has availed some loans from the complainant and he repaid the said loans and at that time cheques were given as a security which were misused by the complainant. 13. From the records it is evident that the complainant has specifically asserted that the loan was advanced in the year 2002 to the tune of Rs.5, 00, 000.00. There is no specific pleading as to on which date the loan was advanced . A vague assertion was made that in the year 2002 a loan of Rs.5, 00, 000.00 came to be advanced. However, the cheque is dated 07.12 .2007, which is marked at Ex.P1. There is no serious dispute to the fact that the cheque belongs to the accused and it bears his signature. 14. To enforce a liability under Sec. 138 of N.I .Act, it should be a legally enforceable debt. In the present case, the allegations of the complaint itself disclose that the hand loan was advanced in the year 2002 and the cheque was issued on 7/12/2007 . In view of that matter, it is evident that this cheque was issued a fter nearly 5 years and it is clearly barred by law o f limitation . 15. Learned counsel for the respondent/complainant would contend that in 2005, the accused has admitted to settle the dispute and hence that is required to be taken as an acknowledgment. But when exactly the accused has agreed to settle the dispute is not at all forthcoming. On the contrary, in the cross examination of PW1, he has specifically admitted that he has not issued legal notice nor initiated any steps against the accused for recovery of the said amount. Apart from that the loan amount itself is for Rs.5, 00, 000.00, but the cheque was for Rs.8, 60, 000.00. According to the respondent, the accused has voluntarily offered to pay interest @ 24% per annum and the amount was workout in 2007 to the tune of more than Rs.11, 00, 000.00, but it was settled for Rs.8, 60, 000.00. 16. According to the respondent, the accused has voluntarily offered to pay interest @ 24% per annum and the amount was workout in 2007 to the tune of more than Rs.11, 00, 000.00, but it was settled for Rs.8, 60, 000.00. 16. At the first instance it is a time barred debt. Further admittedly the complainant is not a money lender as admitted by himself and question of he charging interest or insisting for the same does not arise at all. There is no endorsement on any of the documents admitting the personal liability as contemplated under Sec. 56 of N.I .Act. Though there is a financial transaction in favour of the complainant, considering the fact that the debt itself is barred by law of limitation, presumption in favour of the complainant cannot be drawn. 17. Further the documents produced by the accused disclose that there were number of complaints filed by the accused against the complainant and proceedings were initiated by the police. As per the allegations of the accused, the alleged settlement is said to have been taken place in the police station, as such it does not have any relevancy. Even otherwise if the cheque is treated as an acknowledgment of debt, then also acknowledgment of debt after the limitation period will not revive the original liability. Hence the contention of the learned counsel for the respondent/ complainant that the cheque was issued towards legally enforceable debt cannot be accepted. Presumption under Sec. 139 of N.I .Act is not at all attracted and even as per the admission given by the complainant the loan was advanced in the year 2002 and cheque came to be issued in 2007 . Hence the transaction is clearly barred by law of limitation. Apart from that the complainant has no where pleaded as to specific date of advancement of money and it is difficult to accept that he is unable to ascertain the date when he has advanced a huge amount of Rs.5, 00, 000.00 that too in 2002. 18. Both the courts below have failed to appreciate the oral and documentary evidence in proper perspective and in a mechanical way on the basis of the admission of the cheque and signature, proceeded to convict the accused, which is a erroneous finding. Both the courts below have failed to appreciate the evidence lead by the complainant regarding debt being barred by time. Both the courts below have failed to appreciate the evidence lead by the complainant regarding debt being barred by time. It is contended by the learned counsel for the complainant/respondent that this issue was not raised before both the courts below, but when it is a question of law, it is not required to be raised and it is the duty of the court to consider and it is the duty of the complainant to prove that the liability is within the limitation period. Hence both the courts have committed grave error in convicting the accused for the offence punishable under Sec. 138 of N.I .Act, which has resulted in miscarriage of justice . As such the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court are perverse and erroneous and hence they call for interference by this court in the revision petition. As such the point for consideration is answered in the affirmative. Hence the revision petition needs to be allowed. Accordingly I proceed to pass the following: ORDER (a) The revision petition is allowed. (b) The impugned judgment o f conviction and order of sentence passed by the XII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No .3892/2008 dtd. 29/12/2011 convicting the revision petitioner/ accused for the offence punishable under Sec. 138 of N.I.Act and con firmed by the Fast Track Court-IV, Bengaluru Ci ty in Crl.A.No.75/2012 dtd. 22/4/2013 are set-aside. (c) The accused stands acquitted for the offence punishable under Sec. 138 of N.I.Act. The bail bonds executed by the accused stand cancelled . (d) He is set at liberty immediately . (e) The amount deposited by the accused, if any, in any o f the courts shall be refunded to him.