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2023 Supreme(Online)(KAR) 3056
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.725 OF 2011
BETWEEN:
PRASAD RAYKAR
S/O VIDYADHAR V RAIKAR,
AGED 37 YEARS,
GOLDSMITH,
R/AT NO.6888/1,
P.J.EXTENSION, 8TH MAIN,
DAVANAGERE.
... APPELLANT
(BY SRI ANAND SHETTY, ADVOCATE
FOR SRI RAJASHEKAR, ADVOCATE)
AND:
B T DINESH
S/O T A BHARAMAPPA,
AGED ABOUT 40 YEARS,
R/AT D NO. 1860,
S.S.LAYOUT, A BLOCK,
BEHIND OFFICER CLUB,
DAVANAGERE.
... RESPONDENT
(BY SRI R NAGENDRA NAIK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
07.04.2011 PASSED BY THE II ADDL. S.J., DAVANAGERE IN
CRL.A.NO.140/10 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND CONFIRM THE JUDGMENT AND SENTENCE ORDER OF
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CONVICTION PASSED BY THE PCJ (SR.DN.) AND CJM,
DAVANAGERE IN C.C.NO.1303/09, DATED:18.10.10.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 09.12.2022 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
The legal representative of a deceased person is liable to discharge the liability of the deceased person under Section 29 of the Negotiable Instruments Act, 1881.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 29 - LIABILITY OF LEGAL REPRESENTATIVE - SECTION 138 - DISHONOR OF CHEQUE - LIABILITY OF ACCUSED
Fact of the Case:
The complainant filed a private complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for dishonor of cheques issued by the accused towards repayment of a loan borrowed by his deceased father from the complainant. The trial court convicted the accused, but the appellate court acquitted him on the ground that there was no legally enforceable debt payable by the accused. The complainant appealed to the High Court challenging the acquittal.
Finding of the Court:
The High Court allowed the appeal, set aside the judgment of the appellate court, and upheld the conviction of the accused by the trial court. The High Court held that the accused, as the legal representative of his deceased father, was liable to repay the loan under Section 29 of the NI Act. The court also held that the debt was not time-barred as the accused had made a part payment of Rs. 10,000/- towards the loan within two years of his father's death.
Issues: 1) Whether the accused was liable to repay the loan borrowed by his deceased father? 2) Whether the debt was time-barred?
Ratio Decidendi: 1) Section 29 of the NI Act makes the legal representative of a deceased person liable to discharge the liability of the deceased person. 2) The debt was not time-barred as the accused had made a part payment towards the loan within two years of his father's death.
Final Decision: The High Court allowed the appeal, set aside the judgment of the appellate court, and upheld the conviction of the accused by the trial court.
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
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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
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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
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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/-
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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.
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7.
Having heard the arguments of learned
counsel for the par
