Back
2015 Supreme(Mad) 1177
HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
Sangeetha – Appellant
Vs.
A. Raja – Respondent
Crl.A.No. 396 of 2008
Decided On : 03-03-2015
For the Appellant:P. Jagadeesan, Advocate.
Headnote:
Negotiable Instruments Act - Section 138 - Limitation Act – Constitution of India, 1950 - Article 28 and 34 – Dishonor of cheque – Acquittal of order – Appeal against conviction - Appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that respondent accused borrowed from appellant complainant and agreed to repay same with interest in eleven months and on same day they entered into a loan agreement Ex.P.6 - Since he has not repaid money he issued a cheque Ex.P.1 for a sum of drawn in Bank Branch - When it was presented for encashment in Bharat Overseas Bank Salem Branch it was returned as insufficient funds as per return memo nEx.P.2 - Same was intimated by Bharat Overseas Bank to appellant complainant and it was marked as Ex.P.3 - So appellant complainant issued Ex.P.4 statutory notice to respondent under Section 138 of Negotiable Instruments Act which was evidenced by Acknowledgment Card Ex.P.5 - Even though respondent accused received notice neither he repaid money nor sent any reply – Hence appellant complainant was constrained to file a private complaint against respondent accused under Section 138 of Negotiable Instruments Act - Trial Court has taken cognizance of an offence after recording sworn statement and after following procedure - Since accused pleaded not guilty trial Court examined P.W.1 and Exs.P.1 to P.6 on side of complainant and on side of respondent no oral and documentary evidence was marked - Trial Court after considering oral and documentary evidence acquitted accused for offence under Section 138 of Negotiable Instruments Act – Held, It is an admitted fact that after receipt of notice respondent has not given any reply - In cross examination of P.W.1 it was stated that both appellant and respondent are relatives - Respondent has paid first two months interest alone and after that interest was not paid and appellant has not given any receipt for interest - A suggestion was posed to her that since she has demanded higher rate of interest respondent has not paid that amount and she preferred a complaint was denied by her – Further one more suggestion was posed to her that cheque has been given as security for loan obtained for title deed in respect of house property and she has utilized same was denied by her - One more suggestion was posed to her that respondent has repaid entire amount and to demanding higher rate of interest she filed complaint was denied by her - It is duty of person who pleaded discharge must prove same - To prove discharge respondent accused neither filed any scrap of paper nor let in any evidence to show that discharged same - Considering Article 28 and 34 of Limitation Act and also decision stated supra court of view that in loan agreement it is stated as eleven months for repayment of loan – So after eleven months from Ex.P.6/Loan Agreement only cause of action arose – Cheque Ex.P.1 has been issued well within three years as per Article 28 and 34 of Limitation Act - Trial Court has wrongly acquitted accused on ground that cheque Ex.P.1 has been issued for time barred debt - Since Trial Court has not properly appreciated legal position and also document Ex.P.6 court of view that judgment of acquittal is perverse – Therefore judgment of acquittal passed by trial Court is hereby set aside - Criminal Appeal is allowed
1. This Criminal Appeal arises out of the judgment of acquittal dated 01.04.2008 made in C.C.No.228 of 2006 on the file of the learned Judicial Magistrate No.I, Salem (Salem District).
2. The appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that on 02.02.2003, the respondent/accused borrowed a sum of Rs.2,00,000/- from the appellant/complainant and agreed to repay the same with interest in 11 months and on the same day, they entered into a loan agreement/Ex.P.6. Since he has not repaid the money, he issued a cheque/Ex.P.1. dated 27.03.2006 for a sum of Rs.2,00,000/- drawn in Canara Bank, Erumapalayam Branch. When it was presented for encashment in Bharat Overseas Bank, Salem Branch, it was returned as “insufficient funds” as per return memo/Ex.P.2. The same was intimated by the Bharat Overseas Bank to the appellant/complainant and it was marked as Ex.P.3. So the appellant/complainant on 13.04.2006 issued Ex.P.4/statutory notice to the respondent under Section 138 of Negotiable Instruments Act, which was evidenced by Acknowledgment Card/Ex.P.5. Even though the respondent/accused received the notice, neither he repaid the money nor sent any reply. Hence, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act.
3. The trial Court has taken cognizance of an offence after recording the sworn statement and after following the procedure. Since the accused pleaded not guilty, the trial Court examined P.W.1 and Exs.P.1 to P.6 on the side of the complainant and on the side of the respondent no oral and documentary evidence was marked. The trial Court after considering the oral and documentary evidence, acquitted the accused for the offence under Section 138 of Negotiable Instruments Act.
4. Challenging the judgment of acquittal passed by the trial Court, the learned counsel for the appellant/complainant submitted that the Trial Court has acquitted the respondent/accused stating that the cheque/Ex.P.1 has been given for discharging time barred debt and so there is no evidence to show that the cheque has been issued for discharging legally subsisting liability. He would submit that the issuance of cheque/Ex.P.1 has been admitted, which was presented for encashment and that has been returned as “Insufficient Funds” as per Return memo/Ex.P.2 and then, Statutory Notice under Section 138 (b) of Negotiable Instruments Act has been issued under Ex.P.4, which was evidenced from acknowledgment card/Ex.P.5. Even though notice has been received, the respondent/accused neither repaid the money nor sent any reply. Hence, complaint has been filed. The Trial Court has held that as per the loan agreement/Ex.P.6, which is dated 02.02.2003 and the cheque/Ex.P.1 is dated 27.03.2006 i.e. after three years and hence, the cheque has been issued for time barred debt and it is not for discharging legally subsisting liability after following the decision reported in Rajendra Finance, rep. By Power of Attorney Mr. A.R.G. Laxmi Narayana v. S. Alousius Thairiyanatham 2005 (1) CTC 416 and also Joseph v. Devassia 2002 (1) MWN (Cr.) DCC (Ker) 118 . He would further submit that in the loan agreement, the date has been mentioned as 02.02.2003 and in that agreement, time fixed for repayment of loan is 11 months, then the cause of action arose only after 11 months. Therefore, from that date onwards the period of limitation is three years as per Article 28 and 34 of the Limitation Act and hence, the debt is not time barred. To substantiate his argument, he relied upon the decision of this Court reported in Meiyappan Servai v. Meenakshi Achi (1970) 1 MLJ 156 . Hence, he prayed for convicting the respondent/accused.
5. Even though the matter was posted for several hearings for respondent arguments, there is no representation on behalf of the respondent. Notice has been issued and even after receipt of notice, he has
