IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Criminal Appeal No. 912 of 2010 BETWEEN:
M/S. SREE GOKULAM CHITS & FINANCE CO. (P) LTD. HAVING ITS REGISTERED CORPORATE OFFICE AT ‘SREE GOKULAM TOWERS’ No.66 ARCOT ROAD, KODAMBAKKAM CHENNAI – 600024 AND HAVING BRANCH OFFICE AT REAR BLCOK, 1ST FLOOR PUNJAB MANSION, No.23 EBRAHIM SAHIB STREET, SHIVAJI NAGAR BENGALURU– 560 003.
REPRESENTED BY ITS BOARD RESOLUTION HOLDER SRI. S. RAJESH KUMAR (BY SRI. H. K. SINGH, ADV.) AND:
SRI. IRSHAD PROPRIETOR M/S. FRESH FRUITS, ‘NILGIRIS BUILDING’ No.171, BRIGADE ROAD BENGALURU – 560 001.
…APPELLANT ... RESPONDENT (BY SRI. L. S. SHEKAR, ADV.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 26.07.2010, PASSED BY THE V ADDL. JUDGE, COURT OF SMALL CAUSES & XXIV ACMM, BANGALORE IN C.C.NO.30973/06 ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the complainant against the judgment dated 26.07.2010, passed in C.C.No. 30973/2006 on the file of V Addl. Judge, Court of Small Causes & XXIV ACMM, Mayo Hall Unit, Bangalore.
2. The appellant is a company which has been duly registered under the Indian Companies Act and the respondent is the subscriber of chit group Nos.G1S-333 & G6S-275 and Ticket Nos.5,6,7,8,9 & 5, respectively. Respondent participated in the auction, prized the chit and received an amount of Rs.75,000/- each, after deduction of 25% towards sala value. After receiving the said amount, respondent has failed to remit the future installments and he was a chronic defaulter. After the appellant requested the respondent several times to repay the said amount, respondent has issued cheque bearing No.228749 dated 22.04.2006 amounting to Rs.1,19,646/- drawn on Vijaya Bank, Brigade Road, Bangalore. The appellant presented the said cheque for encashment. The said cheque was returned dishonored with an endorsement ‘insufficient funds’ on 03.05.2006. After the receipt of endorsement, the appellant got issued a legal notice on 15.05.2006, calling upon the respondent to pay the amount mentioned in the cheque. The said notice was served on the respondent. But the respondent has neither replied to the said notice nor paid the amount mentioned in the said cheque within the stipulated time. The appellant filed a complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
The trial Court recorded sworn statement and took cognizance and issued summons to the respondent. Respondent appeared and was enlarged on bail and did not plead guilty and claimed to be tried. In order to prove the contents of the complaint, the official of the appellant by name S.Rajesh Kumar was examined as PW-1 and got marked documents as Exs.P1 to P7. Ex.P1 is the copy of Board Resolution dated 01.08.2008; Ex.P2 is the cheque; Ex.P3 is the endorsement issued by the bank; Ex.P4 is the copy of legal notice; Ex.P5 is the RPAD receipt; Ex.P6 is the acknowledgment; and Ex.P7 is the UCP receipt. The appellant closed their side. Statement of the respondent under Section 313 of Cr.P.C was recorded and the respondent examined himself as DW.1 and got marked documents as Exs.D1 to D3. Ex.D1 is the extract of current account of the respondent; Ex.D2 and D3 are the statements pertaining to chit transaction.
The trial Court, on the basis of Ex.P3, held that Ex.P3 does not disclose the cheque number and the date of cheque and on that ground, acquitted the respondent. Against the said judgment, the appellant has filed this appeal.
3. Heard arguments of learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submits that Ex.P3 pertains to Ex.P2 and also PW-1 has been authorized to depose on behalf of the company and further submits that he has produced a resolution as per Ex.P1 authorizing Rajesh Kumar to depose on behalf of the company and further submits that respondent has admitted the chit transactions i.e., No.G1S-333 & G6S-275 and Ticket Nos.5,6,7,8,9 & 5 respectively, as per Ex.D2 and D3. The respondent has admitted the liability in regard to payment of debt and submitted that the trial Court has committed an error in acquitting the respondent for the offence punishable under Section 138 of the N.I.Act.
5. Per contra, learned counsel for the respondent submits that the claim made by the appellant is barred by limitation on the ground that as per Ex.D2, G.P.No.G6S-275 Ticket No.5 the date of commencement of sala is on 28.12.1996 and date of termination is 28.07.1998; and as per Ex.D3, G.P.No.G1S-333 Ticket Nos.5, 6, 7, 8, 9, the date of commencement of sala is on 25.06.1998 and date of termination is 25.01.2000, and the cheque which has been presented by the complainant is dated 22.04.2006. So, the claim made by the appellant is time barred and further he submits that the appellant has not produced any acknowledgment regarding time barred debt. He further submits that Ex.P1-Board Resolution produced by the appellant-Company is subsequent to the date of presentation of the complaint. It is further submitted that PW-1 during the course of cross-examination has stated that respondent has executed promissory note and agreement and that he has no objection for producing the said documents. But, the appellant has neither produced promissory note nor agreement in support of his contention. On these grounds he sought for dismissal of the appeal.
6. As per Ex.D2, G.P.No.G6S-275 Ticket No.5 sala for Rs.1,00,000/- commenced on 28.12.1996 and date of termination is 28.07.1998; and as per Ex.D3, G.P.No.G1S-333 Ticket Nos.5, 6, 7, 8, 9, sala for Rs.1,00,000/- for each ticket number, commenced on 25.06.1998 and date of termination is 25.01.2000. The appellant-company ought to have initiated proceedings within three years from the date of termination. The appellant has not initiated any action for recovery of the said amount within the stipulated period of three years from the date of termination.
7. Section 138 of the N.I.Act reads as under:
138 Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
PROVIDED that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
8. Section 138 of the N.I.Act is attracted only if there is a legally recoverable debt. It cannot be said that time barred debt is legally recoverable debt. In the present case, as observed above, the claim made by the appellant is time barred debt and the appellant has failed to prove that the same is within time.
9. Further, the endorsement issued by the bank as per Ex.P3 does not disclose the cheque number or the date of the cheque mentioned in Ex.P2. On perusal of Ex.P3, it cannot be said that Ex.P3 pertains to Ex.P2, in the absence of required particulars. The appellant has not even examined the bank manager to prove that Ex.P3 pertains to Ex.P2. In view of non-examination of the bank manager, an adverse inference has to be drawn on Ex.P3 against the appellant that Ex.P3 does not pertains to Ex.P2. Hence, the appellant has failed to prove that Ex.P3 pertains to Ex.P2.
10. Learned counsel for the respondent has argued that as on the date of presentation of the complaint, Rajesh Kumar was not authorized to present the complaint and the complaint is presented by an unauthorized person. From the perusal of records, it is evident that the copy of Board Resolution produced by the appellant as per Ex.P1 is dated 01.08.2008, i.e., subsequent to filing of the complaint on 21.07.2006. The appellant has not produced any document to show that Rajesh Kumar was authorized to present the complaint as on 21.07.2006, and hence the complaint presented by Rajesh Kumar is without any authority in the eye of law. The trial Court, on considering the oral and documentary evidence, has rightly acquitted the respondent for the offence punishable under Section 138 of the N.I.Act.
11. In view of the aforesaid reasons, I do not find any grounds to interfere with the order passed by the trial Court. Accordingly, the appeal is dismissed.
Sd/- Judge
RD