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TMI Blog2006 (10) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... ively. 4. The complainant and the accused were friends and colleagues in the then Karnataka Electricity Board. When the accused was about to retire, he approached the complainant for a loan of ₹ 60,0007 and agreed to repay the same within a short period. The complainant advanced a sum of ₹ 60,0007 to the accused in this way that a sum of ₹ 2007 was paid in cash and the balance amount of ₹ 59,8007- was paid by three cheques. The accused has encashed the cheques. Though the loan amount was repayable within a short period, the accused took undue advantage of friendship with the complainant and agreed to repay the loan within six months with interest at the rate of 8% p.a., but the accused failed to keep up his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there was no evidence to show that the accused had acknowledged the debt within 3 years of loan. Therefore, the Trial Court recorded an order of acquittal in favour of the accused. This is impugned in this appeal. 6. The learned Counsel for the complainant submitted that the Learned Magistrate committed an error in dismissing the complaint. He cited the following decisions reported in: (i) A.V. MURTHY v. B.S. NAGABASAVANNA 2002 AIR SCW 694 (ii) RAMAKRISHNAN v. PARTHASARADHT 2003 (3) Indian Civil Cases 662 7. The learned Counsel for the respondent/accused submitted that there is no illegality or infirmity in the impugned judgment. 8. The complainant has produced pass books at Exs. P-8 and P-9. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by the Statute of Limitations; or, if a man, after he comes of age, promises to pay a meritorious debt contracted during his minority, but not for necessaries; or if a bankrupt, in affluent circumstances after his certificate, promises to pay the whole of his debts; or if a man promises to perform a secret trust, or a trust void for want of writing, by the Statute of Frauds. In such and many other instances, though the promise gives a compulsory remedy, where there was none before either in law or equity; yet as the promise is only to do what an honest man ought to do, the ties of conscience upon an upright mind are a sufficient consideration. 11. The Hon'ble Apex Court in A.V. Murthy v. B.S. Nagabasavanna, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red cheques in question. Therefore, they constitute an agreement or promise by the debtor to pay the time barred debt, Since the accused has not paid the cheque amounts inspite of demand made by the complainant the accused has committed an offence under Section 138 of the Act. The learned Magistrate has committed an error in dismissing the complaint and recording and order of acquittal in favour of the accused. 14. For the foregoing reaons, I answer the point formulated for my consideration in the negative. In the result, the Appeal is allowed and the impugned judgment dated 20.11.2001 made in C.C.No. 35100/1999 on the file of XVI Addl. Chief Metropolitan Magistrate at Bangalore, is set aside and the respondent/accused is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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