Part payment of debt extends limitation for recovery, hence upholding conviction under Section 138 despite defense claims of repayment.

ORDER :

1. This Criminal Revision Petition is directed against the judgment dated 09.10.2017 passed in Crl.A.No.979/2016 by the LXII Additional City Civil and Sessions Judge, Bengaluru wherein conviction of the petitioner by judgment dated 04.08.2016 passed in C.C.No.34328/2014 by the XIII Additional Chief Metropolitan Magistrate, Bengaluru for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I Act” for brevity) and sentenced to pay fine of Rs.3,00,000/- and in default to undergo simple imprisonment for a period of 06 months has been affirmed.

2. Heard learned counsel for the petitioner. Learned counsel for the respondent is absent.

3. The case of the respondent-complainant before the trial Court is that the respondent-complainant and the petitioner are known to each other since several years. The accused was facing financial problems and as such he approached the complainant and requested to pay a sum of Rs.2,75,000/- (rupees Two Lakhs Seventy Five Thousand only) as hand loan to meet his financial problems. The complainant has advanced a sum of Rs.2,75,000/- (rupees Two Lakhs Seventy Five Thousand only) by way of cash on 24.10.2008. At the time of borrowing said loan, the accused had assured that he will repay the said amount along with interest at the rate of 18% p.a. within two years from the date of borrowing. The petitioner-accused executed On Demand Promissory Note and Consideration Receipt on 24.12.2008 for Rs.2,75,000/- (rupees Two Lakhs Seventy Five Thousand Only) in favour of the complainant. Thereafter, the accused has paid interest on the principal amount till December-2010 and thereafter, he has not paid principal amount nor interest amount. Thereafter, the accused has paid a sum of Rs.75,000/- (rupees Seventy Five Thousand only) during the month of July-2012 towards part payment of principal amount. The accused has issued two cheques for Rs.1,00,000/- each both dated 07.08.2014 bearing Nos. 031071 and 031069 drawn on Syndicate Bank, Rajajinagar, Bengaluru. The complainant presented those two cheques for encashment and they returned with an endorsement as “funds insufficient” on 09.08.2014. The complainant intimated regarding dishonour of cheques to the accused. The petitioner –accused requested the complainant to present said cheques again after one month. The complainant presented said cheques again on 18.09.2014 and said cheques came to be dishonoured with an endorsement “account closed”. The complainant got issued legal notice to the accused on 16.10.2014 by RPAD calling upon the petitioner -accused to pay cheques amount. The said notice has been served on the petitioner –accused on 17.10.2014. The petitioner –accused has not paid amount of cheques, therefore, the respondent – complainant has initiated proceedings against the petitioner –accused for offence punishable under Section 138 of the N.I Act.

4. The respondent-complainant has examined himself as P.W.1 and got marked documents as Ex.P1 to P9. The statement of the accused has been recorded under Section 313 of Cr.P.C. The petitioner -accused has been examined as D.W.1 and got marked one document as Ex.D1. The trial Court after hearing arguments on both side and appreciating evidence on record has convicted the petitioner –accused for the offence punishable under Section 138 of the N.I Act and sentenced to pay fine of Rs.3,00,000/- (rupees Three Lakhs only) and in default to undergo simple imprisonment for a period of 06 months. The said judgment of conviction has been challenged by the petitioner before the Sessions Court in Crl.A.No.979/2016. The said appeal came to be dismissed on merits and confirmed the judgment of conviction pa