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TMI Blog2024 (3) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... nd documentary evidence placed on record, it would go to show that in the month of June 2012 accused approached the complainant for hand loan of Rs.4,50,000/- for her urgent legal necessity. Complainant has paid Rs.4,50,000/- to accused, who had undertaken to repay the same within a short period of time. Accused in order to discharge legally enforceable debt issued cheque bearing No.799877 dated 02.04.2013 drawn on Karur Vysya Bank Ltd., Karangalpady, Mangaluru - Ex.P1. Complainant presented the said cheque for encashment through his banker and the same was dishonoured vide Bank endorsement - Ex.P2 dated 04.04.2013. Complainant issued demand notice dated 29.04.2013 - Ex.P3 through RPAD. The postal receipt is produced at Ex.P4 and undelivered envelope sent through RPAD is produced at Ex.P5 and the notice contained in the said envelope was opened and marked as Ex.P5(a). If the above referred documents are perused and appreciated with oral testimony of PW.1, then it would go to show that complainant has complied all the necessary legal requirements in terms of Section 138(a) to (c) of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "N.I.Act"). Complainant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , came to be marked during the evidence of DW.1. Whether the said rebuttal evidence placed on record by accused would be sufficient to displace the statutory presumption available in favour of complainant or not is to be decided. 9. It is the specific defence of accused that demand notice dated 29.04.2013 - Ex.P3 issued by the complainant is not duly served to the accused. Secondly, there is no loan transaction of accused with complainant and lastly complainant has no financial capacity to lend the money of Rs.4,50,000/- covered under Ex.P1. Whether the said defence has been probabalised by the accused out of the evidence placed on record or not has to be decided. 10. Complaint averments and also during the course of evidence, complainant has claimed that on receipt of intimation of dishonour of cheque Ex.P2 on 04.04.2013, issued demand notice dated 29.04.2013 - Ex.P3 through RPAD. The undelivered postal envelope bears the endorsement of the postal authority that the addressee 'not claimed' the consignment in spite of service of Ex.P5. The Trial Court by order dated 10.10.2013, has ordered to issue summons to accused through RPAD on the same address as given in the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 12. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Cheque Book as appearing in cheque - Ex.P1, instead issuing CTS cheque (Clearance System Cheque). 17. It is the specific case of complainant that accused has taken hand loan of Rs.4,50,000/- on 15.06.2012. On the same line, demand notice has been issued - Ex.P3. However, for the first time during the course of his evidence before the Court in the Chief Examination by way of affidavit of PW.1, given totally different version than what was stated in the complaint. In order to better appreciate the evidence on record, it is appropriate to reproduce paragraph Nos.2 and 3 of Chief Examination by way of affidavit of PW.1, which reads as under: "2. I say that, the accused approached me for a loan of Rs.4,50,000/- (Rupees four lakhs fifty thousand only) for her urgent and legal necessity. I have paid her a sum of Rs.3,00,000/- (Rupees three lakhs only) by way of cheque bearing No.00443690 drawn on Canara Bank, Permude dated 22.07.2009 and remaining amount of Rs.1,50,000/- (One Lakh fifty thousand only) paid in cash. 3. I say that, in the complaint filed by me in this case I have wrongly mentioned that I have paid the amount to the accused in the month of June 2012 as by ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P1 for lawful discharge of debt. 21. Learned counsel for accused in support of his contention that time barred debt cannot be legally enforceable debt placed reliance on the Co-ordinate Bench Judgment of this Court in The Bidar Urban Co-operative Bank Ltd., Bidar Vs. Girish reported in ILR 2021 KAR 2437 and another Co-ordinate Bench Judgment of Kerala High Court in Joseph Vs. Devassia reported in 2001 Crl. L.J. 24, in both the aforementioned judgments, it has been held that time barred debt is not a legally enforceable debt and penal action in terms of Section 138 of the NI Act is not attracted. 22. Learned counsel for complainant relied on the Judgment of the Hon'ble Apex Court in A.V. Murthy Vs. B.S. Nagabasavanna reported in (2002)2 SCC 642, wherein, it has been observed and held as under:- "In view of Sections 118 and 139 of the Negotiable Instruments Act, Section 25(3) of the Contract Act, 1872 and in the presence of a documentary evidence which might amount to acknowledgment reviving the period of limitation, the present case was not one where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation to section 138 of the said Act of 1881. Therefore, even the second question will have to be answered in the affirmative." 24. Learned counsel for complainant also placed reliance on the Judgment of Hon'ble Bombay High Court in M. Shantilal & Co. Vs. Abbaji Maruti Jadhav and Another reported in 2019 SCC OnLine Bom 4356, wherein, by referring to the Division Bench Judgment of Hon'ble Bombay High Court in Dinesh B. Chokshi's case (supra), held in paragraph No.11 as under:- "In the circumstances, once a cheque is drawn for discharge of a time barred debt, it creates a promise which becomes an enforceable contract and therefore, it cannot be said that the cheque is drawn in discharge of debt or liability which is not legally enforceable. Therefore, I am satisfied that the impugned judgment dated 16.9.1998 has to be set aside and is hereby set aside. The matter is remanded to the trial court to decide, based on the evidence already recorded, whether the complaint has proved the ingredients of offence punishable under Section 138 of the Negotiable Instrument Act 1881." Therefore, in view of the principles enunciated in the aforementioned Judgment, it is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X
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