Cheque issuance as a promise creates enforceable debt, irrespective of claim about it being time-barred.

ORDER

Revision petitioners/ accused Nos.1 to 3 feeling aggrieved by judgment of first appellate Court on the file of I Addl. District & Sessions Judge, Haveri, in Criminal Appeal No.95/2015 dated 27.02.2016 in confirming the judgment of the trial Court on the file of Addl. Civil Judge & JMFC, Haveri in C.C. No. 642/2005 dated 03.10.2015, preferred this revision petition.

2. Parties to the revision petition are referred with their ranks as assigned in the trial court, for the sake of convenience.

3. Heard arguments of both sides.

4. After hearing arguments of both sides and on perusal of trial court records, so also the impugned judgment under appeal, the following points arise for consideration.

i) Whether the impugned judgment of the first appellate Court under revision in confirming the judgment of conviction and order of sentence passed by the trial court for the offence punishable U/s 138 of Negotiable Instruments Act, is perverse, capracious and legally not sustainable?

ii) Whether interference of this Court is required?

5. On careful perusal of the material evidence placed on record, it would go to show that complainant is a Class-1 Civil Contractor and permanent resident of Byadagi. Accused No.1 is the Private Limited Company, accused Nos.2 and 3 are husband and wife and are the Directors of accused No.1 Company. Accused Nos.2 and 3 are doing software business through accused No.1 Company. On 13.05.2002, accused Nos.2 and 3 visited the complainant at his place and sought financial assistance of Rs. 5 lakhs for the purpose of improving the business of accused No.1 Company. Complainant has paid the said amount of Rs.5 lakhs and accused have agreed to repay the same within six months. On 12.08.2005 complainant demanded repayment of his money. Accused Nos.2 and 3 issued cheque bearing No. 430659 dated 16.08.2005 for Rs.5 lakhs drawn on Canara Bank, V.V. Puram Branch, Bengaluru- Ex.P.1. Complainant presented the said cheque through his banker, State Bank of India, Haveri branch, on 19.08.2005. The counterfoil challan of State Bank of India is produced at Ex.P.9. The said cheque issued by accused Nos.1 and 2 came to be dishonoured with bank endorsement as “payment stopped by drawer” dated 28.08.2005-Ex.P2. The banker of complainant given intimation of Ex.P.2 vide letter dated 19.09.2005- Ex.P.10. Complainant issued demand notice dated 01.10.2005 through registered post and under certificate of posting-Ex.P.3. The demand notice is duly served to accused vide postal acknowledgement Exs.P.4 to P.6 on 04.10.2005. Accused have replied to the demand notice dated 20.10.2005-Ex.P.12 denying their liability to pay the amount under cheque-Ex.P.1. Complainant has filed the complainant on 24.10.2005-Ex.P.7.

6. If the aforementioned documents are perused and appreciated with the oral testimony of PW1, then it would go to show that complainant has complied all the necessary legal requirements in terms of Section 138 (a) to (c) of the Negotiable Instruments Act, 1881 (hereinafter referred as ‘N.I.Act’ for the sake of brevity). Complainant has filed the complaint within a period of one month in terms of Section 141(1)(b) of the N.I. Act. Therefore statutory presumption in terms of Sec.118 and 139 of N.I. Act will have to be drawn in favour of complainant holding that the cheque was issued by accused for lawful discharge of debt.

7. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945 , wherein it has been observed and held that once the issuance and signature on cheque