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TMI Blog2011 (2) TMI 1598X X X X Extracts X X X X X X X X Extracts X X X X ..... was returned on account of insufficient funds along with memo and on receipt of the same the complainant issued a statutory notice, thereby calling upon the accused to discharge his liability and the accused though received the notice did not either reply or discharge his liability thereby committed the act, constituting the offence punishable under Section 138 of Negotiable Instruments Act. 3. The complainant has, in order to prove his case as stated above, examined himself as PW1 and marked the Cheque, return memo, copy of lawyer notice and acknowledgment for the receipt of the same as Exs.P1 to P4 and no evidence was adduced on the side of the Defendant. On the basis of the evidence adduced, the trial Court arrived at the conclusion that the accused is guilty of the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo imprisonment and pay fine. Aggrieved by the same, the accused preferred appeal in C.A. No. 238 of 2006 on the file of the Additional District-cum-Fast Track Court No. I, Erode. The same was dismissed by confirming the judgment and conviction of the lower Court. Hence, this criminal revision before this Court. 4 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove the complainant's case. 6. Heard the rival submissions made on both sides and perused the records. 7. The parties are referred to in this order as per their rank in the lower Court. The complaint proceeds as if the accused borrowed a sum of ₹ 12,00,000/-from the complainant, promised to repay the same with interest at 12% per annum and executed a pronote to the effect and on the demand made by the complainant to repay the same, the accused paid interest by cash and issued cheque to discharge the entire principal on 19.07.2004 and received back the pronotes executed in favour of the complainant and the account book maintained by the complainant in this regard. The complainant has in his, sworn statement, reiterated the same allegations. But, the complainant neither in the complaint nor in his sworn statement not only failed to furnish the particulars regarding the date and year on which the amount was borrowed pronote was executed, demand was made for repayment by the complainant and cheque dated 19.07.2004 is issued to the complainant and the quantum of interest paid by the accused to the complainant. As rightly argued by the learned Counsel for the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered. In my opinion the settled legal position is mere failure to send reply notice will not take away the right of the party to contest the case. Here is the case, wherein it may be true that the accused admitted the issuance of cheque as such the statutory presumption under Sections 118 and 139 is invoked to the effect that the cheque in question is issued for the discharge in whole or in part of any debt or liability. At this juncture the learned Counsel for the accused raised an objection that such presumption can be invoked only in respect of legally enforceable debt and it is not applicable for time barred debt, which cannot be recovered but such contention raised on the complaint is directly answered in the judgment of the Supreme Court reported in (2010 3 ML J (Crl) 547 (SC) in Rangappa v. Sri Mohan 2010 3 ML J (Crl) 547 (SC), wherein the Hon'ble Supreme Court is by overruling the earlier observation made in CDJ 2008 SC 047 in Krishna Janardhan Bhat v. Dattatraya G. Hegde CDJ 2008 SC 047 pleased to observe that the presumption mandated by Section 139 of he Act does indeed include the existence of the legally enforceable debt or liability. It is further observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as to whether the loan transaction is one single transaction etc., The complainant has introduced different theory in the witness box and none of the theory does definitely say the correct amount due to the complainant borrowed either under one transaction or different transactions, when the cheque is issued for ₹ 12,00,000/-. The complainant on one hand states that the accused borrowed ₹ 5,00,000/-and the accused is due to pay the chit amount to the tune of ₹ 2,00,000/-during 1999-2000, if that is so, the total amount due to her is only ₹ 7,00,000/-and he executed one pronote and the same was returned and one cheque was issued and there is no further particulars furnished as to how the accused became due to pay ₹ 12,00,000/-as on 19.07.2004. The other theory introduced by the complainant in the course of his cross-examination on 23.08.2005 is that the accused issued three pronotes on earlier occasion, two for each ₹ 2,00,000/-and one for ₹ 8,00,000/-and the three pronotes were returned and the present cheque in question is issued. Here again , the complainant did not furnish any particulars as to why when and what circumstances three p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden cast upon him. Whereas, the learned Counsel for the Petitioner relied upon the following Judgments reported in: 1 CDJ2007 SC 1135, K. Prakashan v. P.K. Surenderan CDJ2007 SC 1135, 2 CDJ 2008 SC 047, Krishna Janardhan Bhat v. Dattatraya G. Hedge, 3 CDJ2010 MHC 5862, G. Veerachami v. K. Karuppasami CDJ2010 MHC 5862, Wherein the Hon'ble Supreme Court is of the view that the accused need not get into the witness box to discharge the burden in terms of the above mentioned provision. 1 6 . The next point urged by the Petitioner is that the money being admittedly borrowed between 1999-2000 the same became time barred time during 2004 and when the cheque issued is for the discharge of legally enforceable liability Section 138 of N.I. Act is not attracted. The learned Counsel for the Petitioner has also in respect of his contention cited the authorities reported in 1 CDJ 2010 MHC 7755, K. Kumaravel v. R.P. Rathinam CDJ 2010 MHC 7755, 2 CDJ 2008 Ker HC 726, Joseph Sartho, Thekkepallithanam v. G. Gopinathan and Anr. CDJ 2008 Ker HC 726, 3 CDJ 2010 DHC 318, M/s. Alliance Infrastructure Project Pvt., Ltd., and Ors. v. Vinay Mittal and Anr. CDJ 2010 DHC 318 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the accused. Whereas, the complainant did not furnish any particulars or adduced any evidence to prove the existence of liability between the accused and his mother. Then the complainant's case is to be accepted that the payments made are to be treated as towards partial discharge of liability due to the complainant and notice ought to have been issued for lesser amount and the failure to do so and failure to present the cheque minus the amount already paid in view of the law laid down in the Judgments referred to above any ingredients would not attract for the offence under Section 138 of the Negotiable Instruments Act. 19. Then here is the case wherein the complainant failed to discharge his burden whereas the accused duly discharged burden cast upon him to raise a defence on one hand that the cheque issued under different circumstances and on other hand that it is for time barred debt and for more amount than actually due to the complainant viewing from any angle the both Courts below have miserably failed to properly consider the defence raised on the side of the accused arrived at perverse finding that the accused was due to pay ₹ 12,00,000/-to the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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