Prasad Raykar vs B T Dinesh
2023 Latest Caselaw 38 Kant

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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:


                  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 perusal of the records,

the point that arises for my consideration are:

1) Whether the complainant is able to prove that there is legally enforceable debt payable by the respondent- accused ?

2) Whether the judgment of the First Appellate Court is liable to be set aside ?

8. It is not in dispute that the father of the

accused borrowed loan from the complainant and the

father of the accused died prior to filing of the private

complaint. It is alleged that the complainant

approached the accused to repay the loan, where the

accused undertaken to repay the loan and he said to

be issued two cheques. The main contention of the

counsel for the accused is that there is no legally

enforceable debt payable by him and second

contention is time bound debt which cannot be

enforceable. In this regard, the learned counsel for

the appellant brought to the notice of this Court that

as per Section 29 of the N.I. Act, the legal

representative of the deceased person is liable to

discharge the liability of the father. The learned

counsel has relied upon the judgment of the Hon'ble

Supreme Court in the case of ICDS LTD. vs. BEENA

SHABEER AND ANOTHER reported in (2002) 6 SCC

426.

9. On perusal of Section 29 of the N.I. Act,

which defines as follows:

"29. Liability of legal representative signing

A legal representative of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly

limits his liability to the extent of the assets received by him as such".

10. As per Section 29 of the N.I. Act, the legal

representative of the deceased issued a cheque and

he is liable personally. That apart, as per the

judgment of the Hon'ble Supreme Court in the case of

ICDS LTD. stated supra, the Hon'ble Supreme Court

has upheld the judgment of the trial Court wherein in

the said case, a guarantor issued cheque towards

payment of the dues outstanding against the principal

debtor (hire-purchaser of car in the said case) and the

complaint was filed against the guarantor as the

cheque issued by the guarantor came to be

dishonored. Considering the judgment of the Hon'ble

Supreme Court, where, in this case, the accused is

none other than the son of the deceased-father who

borrowed the loan from the complainant and the

accused agreed to repay the same and he has issued

the cheque. Such being the case, as a legal

representative of the father, the accused is liable to

repay the loan to the complainant. Therefore, the

contention raised by the respondent counsel is not

acceptable and on the other hand, the complainant is

not able to prove the liability of the accused and the

cheque was dishonored, thereby, the accused is liable

for the punishment under Section 138 of N.I. Act and

the complaint is maintainable.

11. In respect of the another contention raised

by the respondent that the debt is time barred one,

his father borrowed loan in the year 2003, the cheque

was issued after four years, therefore, there is no

liability. In this regard, the complainant has stated

and it is specifically mentioned that the accused has

undertaken to repay the amount and he has paid

Rs.10,000/- within two years and specifically

mentioned that on 10.06.2005, the accused repaid

Rs.10,000/- towards his father's liability and

thereafter in the year 2006, he has issued two

cheques on this behalf. Therefore, once the amount

was already repaid, the question of taking contention

that it is barred debt does not arise and it gets

renewed. Therefore, the accused once paid

Rs.10,000/- by cash and subsequently, he issued a

cheque to discharge the liability, he is liable for

discharging his liability of his father. Therefore, the

trial Court has rightly convicted the accused as the

First Appellate Court not considered Section 29 of the

N.I. Act and has erred in acquitting the accused.

Therefore, the judgment of the First Appellate Court is

liable to be set aside.

12. Accordingly, the appeal is allowed.

The judgment of the II Additional Sessions

Judge, Davanagere in Crl.A.No.140/2010 is hereby set

aside.

The judgment of the trial Court in

C.C.No.1303/2009 convicting the respondent-accused

is hereby upheld.

Sd/-

JUDGE

GBB