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KARNATAKA HIGH COURT
K. Natarajan, J.
Prasad Raykar – Appellant
versus
B.T. Dinesh – Respondent
Criminal Appeal No.725 of 2011
Decided on 2.1.2023
For the Appellant:Anand Shetty and Rajashekar, Advocates
For the Respondent:R. Nagendra Naik, Advocate
IMPORTANT POINT
Dishonour of cheque – As a legal representative of father, accused is liable to repay loan to complainant.
Headnote:
Negotiable Instruments Act, 1881 – Sections 138 and 142 read with Section 29 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheque – Appeal against acquittal – Father of accused borrowed loan from complainant and father of accused died prior to filing of private complaint – As a legal representative of father, accused is liable to repay loan to complainant – Accused is liable for punishment under Section 138 of N.I. Act and complaint is maintainable – Trial Court has rightly convicted accused – Judgment of First Appellate Court set aside and judgment of Trial Court convicting respondent-accused upheld.
(Paras 8, 10, 11 and 12)
Result: Appeal allowed.
JUDGMENT
This appeal is filed by the appellant-complainant under Section 378 of Cr.P.C. for setting aside the judgment of acquittal passed by the Second Additional District and Sessions Judge, Davanagere in Crl.A.No.140/2010 dated 07.04.2011 and to confirm the judgment of conviction and sentence passed by the Principal Senior Civil Judge and CJM, Davanagere in C.C.No.1303/2009 dated 18.10.2010.
2. Heard the arguments of learned counsel for the appellant and learned counsel for the respondent.
3. The case of the appellant before the trial Court is that he has filed a private compliant under Section 200 of Cr.P.C. against the respondent-accused for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) alleging that the accused and complainant are known to each other. The father of the respondent-accused - Bharamappa said to be borrowed Rs.2,60,000/- from the complainant appellant on 07.03.2003 for his business and his family necessities and agreed to pay 2% interest per month by executing the on-demand promissory note in favour of the complainant. In the meantime, the father of the accused - Bharamappa died leaving behind his son-accused as a legal heir i.e., prior to filing of the private complaint. On the death of Bharamappa, the complainant asked the accused for repayment of the loan amount and the accused requested for sometime. But he has paid Rs.10,000/- to the complainant on 10.06.2005 and the complainant asked the accused to clear the dues of his father. Later, the interest as well as principal amount was calculated for Rs.4,50,000/- and the accused said to be issued two cheques bearing Nos.571677 and 571679 drawn on Vijaya Bank, Davanagere Branch for the sum of Rs.2,25,000/- each dated 07.06.2006 and 07.07.2006 respectively. The cheques were presented for encashment which came to be dishonored as the account was closed. A notice also served on the accused, but, he did not pay the amount. Hence, the complaint came to be filed before the Magistrate. After appearance of the respondent accused, plea was recorded, he claimed to be tried and on behalf of the complainant, he has examined himself as PW.1 and got marked 14 documents. Statement of the accused under Section 313 of Cr.P.C. was recorded and his case is one of the total denial and he has not led any evidence. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced to pay Rs.4,95,000/- and in default, he shall undergo simple imprisonment for one year. Out of which, Rs.4,50,000/- payable to the complainant as compensation under Section 357 of Cr.P.C.
4. The judgment of conviction has been challenged by the accused before the Sessions Judge. The Sessions Judge being the Appellate Court allowed the appeal and set aside the conviction and sentence passed by the trial Court and acquitted the accused. Hence, the complainant is before this Court by way of appeal.
5. The learned counsel for the complainant has contended that the judgment of the First Appellate Court is erroneous and also not correct. The accused himself has undertaken to discharge the loan borrowed by his father, but, he has paid Rs.10,000/- by cash. Subsequently, he has issued two cheques, but the First Appellate Court failed to consider the same and set aside the judgment of conviction and sentence on the ground that there is no legally enforceable debt which is not correct. Therefore, prayed for setting aside the judgment of acquittal and confirm the conviction and sentence passed by the trial Court.
6. Per contra, the respondent counsel has contended that there is no legally enforceable debt payable by the accused in order to file complaint against him. The debt is time barred. Therefore, the learned counsel supported the judgment passed by the First Appellate Court and hence, prayed for dismissing the appeal.
7. Having heard the arguments of learned counsel for the parties and on peru
