Bangalore District Court
M/S Kalpana Souhardha Co-Operative … vs Sri. Kiran Kumar K.S on 27 January, 2025
KABC0C0083502024
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU
Dated this the 27th day of January, 2025
Present : SANTHOSH S.KUNDER, B.A.,LLM,
XIV Addl.C.J.M., Bengaluru
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No. 52348/2024
Complainant M/s. Kalpana Souhardha
Co-operative Ltd., (Regd),
Office at No.56, Ground Floor,
Harihara Mansion, Narayana Pilla Street,
Shivajinagar, Bengaluru.
Reptd., by its Legal Officer/Manager
Sri.Varun.R.,
S/o Ramesh Babu,
Aged about 31 years.
(By Sri.C.N.Raghavendra., Advocate)
V/s
Accused Sri.Kiran Kumar.K.S,
S/o Mani.K.S,
Aged about 53 years,
R/at No.17#B, Maruthi Nilaya,
2nd 'A' Main, 2nd Cross, AECS Layout,
Sanjay Nagar, Bengaluru.
(By Sri.D.Vijaya Kumara, Advocate)
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Offence U/s 138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
Final Order Accused is acquitted
This complaint is filed under Section 200 of Cr.P.C,
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
The accused had approached the complainant for
sanction of loan. Accordingly, the complainant had
sanctioned personal loan of ₹2,00,000/- to the accused on
21.11.2019 under loan account bearing
No.KSC/PLA/0000263. The accused had agreed for all the
terms and conditions of the loan. However, he has repaid a
sum of ₹20,000/- only. He has failed to clear the dues in
spite of repeated request. Finally, he has issued a cheque
bearing No.000166 for ₹3,45,863/-, drawn on Bank of
Baroda, Bengaluru in favour of complainant towards
repayment of outstanding loan. As requested by the
accused, the said cheque was presented for encashment to
IDFC First Bank, Residency Branch, Bengaluru on
18.11.2023. But, the said cheque was returned unpaid on
21.11.2023 with endorsement 'funds insufficient'. On
13.12.2023, the complainant has issued a legal notice to
the accused. But, the same has been returned on
22.12.2023. It is averred that the accused has issued the
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cheque to the complainant for discharge of his
liability/debt. Therefore, he has committed the offence
under Section 138 of NI Act. Hence, this complaint is filed.
3. This court took cognizance of the offence
punishable under Section 138 of Negotiable Instruments
Act. Legal Officer/Manager of the complainant filed
affidavit in lieu of oral sworn statement. He was examined
on oath as PW-1. As there were prima facie materials,
criminal case was registered and accused was summoned.
4. Pursuant to the summons, accused appeared
before the court and got enlarged on bail. After compliance
of Sec.207 of Cr.P.C, this court recorded his plea by
reading over the substances of accusation. He has pleaded
not guilty and claimed to be tried.
5. Sworn statement affidavit of PW-1 has been
treated as evidence. Documents at Ex.P-1 to 10 marked
through him. After closure of complainant's evidence,
statement of accued under Sec.313 of Cr.P.C. recorded. He
denied the incriminating evidence. He has not led defence
evidence.
6. Advocates appearing for complainant and accused
addressed argument. In addition to oral argument, both
have filed written argument. Accused has produced
case-laws.
7. Perused the records.
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8. Points for consideration:
1. Whether the complainant has proved
that accused has drawn cheque
bearing No.000166 dated 18.11.2023
for ₹3,45,863/-, on Bank of Baroda,
K.G Road Branch, Bengaluru in favour
of the complainant towards discharge
legally recoverable debt/liability and
the said cheque was dishonored for the
reason 'funds insufficient' and in spite
of receipt of statutory notice dated
13.12.2023, he has failed to pay the
amount covered under the cheque and
thereby committed the offence
punishable under Section 138 of
N.I.Act?
2. What order?
9. The above points are answered as under:-
Point No.1 : In the Negative.
Point No.2 : As per final order for the following:
REASONS
10. Point No.1: The case of the complainant is the
that, the accused had availed personal loan of ₹2,00,000/-
from the complainant on 21.11.2019 and he was irregular
in the matter of repaying loan and ultimately, drawn the
cheque in question in favour of the complainant for
repayment of dues and the said cheque came to be
dishonored for the reason 'funds insufficient' and that in
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spite of issuance of statutory demand notice, he has failed
to pay the cheque amount.
11. To substantiate the said contention, the
complainant has offered the evidence of its Legal
Officer/Manager, who was examined as PW-1. As many as
ten documents marked through him as per Ex.P1 to 10.
Ex.P-1 is the cheque in question; Ex.P1(a) is admitted
signature of the accused; Ex.P.2 is bank endorsement;
Ex.P-3 is copy of legal notice dated 13.12.2023; Ex.P.4 is
postal receipt; Ex.P5 is postal track consignment report;
Ex.P6 is board resolution of complainant dated
10.11.2023; Ex.P-7 is loan statement of the accused; Ex.P8
to 10 are loan application, loan agreement and on demand
promissory note, respectively.
12. Testimony of PW-1 has been challenged by the
accused by cross-examining him. It is elicited that the
complainant is a registered society under the Cooperative
Societies Act; it is not registered under the Companies Act.
It is elicited that the complainant is the carrying on
business of accepting deposits and lending loan to its
customers. However, there is no separate license obtained
by the complainant for lending loan. PW-1 has volunteered
that the complainant is not working under RBI.
13. It is elicited that father's name of PW-1 is
Ramesh Babu and his mother's name is Kalpana Ramesh.
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PW-1 has claimed that he is one of the Directors of
complainant. However, he is admitted that in the complaint
as well as sworn affidavit, he has described himself as
Legal Officer/Manager.
14. PW-1 has claimed that he has produced loan
application submitted by the accused, to the court. When
he was asked where is the said document, PW-1 has gone
through the records and stated that no such document is
available on record. He has stated that Ex.P7 is produced
to show that loan amount was transferred to the accused.
He has admitted that he has not produced document to
court to show the outstanding loan payable by the
accused. It is elicited that, notice has not been issued to
the accused calling upon him to pay the outstanding loan.
PW-1 has stated that accused has issued the cheque in the
year 2023 in complainant's office. He has denied the
suggestion that the accused has not handed over the
cheque in complainant's office.
15. PW-1 has stated that except Ex.P5, there is no
document to show that notice at Ex.P3 was served on the
accused. He has denied the suggestion that notice has not
been served on the accused. PW-1 has stated that print out
of Ex.P7 was obtained from the computer kept in the
complainant's office. However, no certificate has been filed
to the court.
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16. PW-1 was further cross-examined on 07.11.2024
and elicited that loan was sanctioned to the accused in the
year 2019. He has admitted that there is no averment in
the complaint as well as in evidence affidavit that as to
when ₹20,000/- was paid by the accused towards the loan.
However, there is no such entry in Ex.P7 to say that the
accused has remitted ₹20,000/- to the complainant. PW-1
has claimed that the same is reflected in the personal
account of the accused. It is elicited that there is a gap of
five years from the date of sanction of loan and issuance of
cheque. It is elicited that letter of revival has not been
obtained from the accused. Further, acknowledgment of
debt is also not obtained from the accused. PW-1 has
denied the suggestion that the loan claimed by the
complainant is a time barred debt.
17. According to the complainant, loan of
₹2,00,000/- was sanctioned on 21.11.2019. Ex.P8 is the
loan application submitted by the accused and Ex.P9 is the
loan agreement dated 21.11.2019; pronote dated
21.11.2019 is at Ex.P10. Consideration receipt dated
21.11.2019 is also appended to Ex.P10. Thus, the
documents produced by the complainant indicate that the
loan of ₹2,00,000/- was sanctioned by the complainant to
the accused on 21.11.2019. This is also evident from loan
account statement at Ex.P7.
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18. PW-1 is claiming that the accused has repaid
₹20,000/- towards outstanding loan. However, there is no
averments in the complaint to that effect. Likewise, there is
no document to support the assertion of PW-1 that the
accused has repaid ₹20,000/- towards outstanding loan.
Loan account statement does not reflect the alleged
payment of ₹20,000/- by the accused. Cheque at Ex.P1
was allegedly drawn/issued by the accused on 18.11.2023.
It is pertinent to note that, the complainant has not
produced any document to show that the accused has
issued a letter of revival acknowledging the debt. PW-1 has
categorically admitted in his cross-examination that,
between the date of sanction of loan and issuance of Ex.P1
cheque, the complainant has not obtained letter of revival
and acknowledgment of debt from the accused. Relevant
portion of deposition of PW-1 dated 07.11.2024 is extracted
as under:-
"XXXXX ಸಾಲ ಮಂಜೂರು ಮಾಡಿದ ದಿನಾಂಕದಿಂದ ನಿ.ಪಿ-
1 ಚೆಕ್ಕ er of revival) ವನ್ನು ನಾವು ಆರೋಪಿಯಿಂದ
ಪಡೆದುಕೊಂಡಿಲ್ಲ. ಅದೇ ರೀತಿ ಆರೋಪಿಯಿಂದ
acknowledgment of debt ಅನ್ನೂ ನಾವು
ಆರೋಪಿಯಿಂದ ಪಡೆದುಕೊಂಡಿಲ್ಲ. ನಾನು ಹೇಳುತ್ತಿರುವ
ಸಾಲ, ಕಾಲ ಪರಿಮಿತಿ ಮೀರಿದ ಸಾಲ ಇರುತ್ತದೆ ಎಂದರೆ
ಸರಿಯಲ್ಲ. XXXXX" ನ್ನು ಕೊಟ್ಟ ದಿನಾಂಕದ ನಡುವೆ 5
ವರ್ಷಗಳು ಆಗಿವೆ. ಸಾಲ ಪುನರುಜ್ಜೀವನ ಪತ್ರ (Letter of
revival) ವನ್ನು ನಾವು ಆರೋಪಿಯಿಂದ ಪಡೆದುಕೊಂಡಿಲ್ಲ.
ಅದೇ ರೀತಿ ಆರೋಪಿಯಿಂದ acknowledgment of
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debt ಅನ್ನೂ ನಾವು ಪಡೆದುಕೊಂಡಿಲ್ಲ. ನಾನು ಹೇಳುತ್ತಿರುವ
ಸಾಲ, ಕಾಲ ಪರಿಮಿತಿ ಮೀರಿದ ಸಾಲ ಇರುತ್ತದೆ ಎಂದರೆ
ಸರಿಯಲ್ಲ. XXXXX"
19. During the course of argument, learned counsel
for the accused has submitted that the alleged debt
claimed by the complainant is barred by time. He has
submitted that time barred debt cannot be termed as a
legally enforceable debt under the provisions of Section 138
of the NI Act. He has submitted the loan was disbursed in
the year 2019; from the date of disbursement of loan till
the issuance of cheque in question by the accused on
18.11.2023, no transaction taken place between the
parties and that there is no acknowledgment of debt by the
complainant. Therefore, prosecution under Section 138 of
NI Act does not lie as the claim is barred by limitation. In
this regard, the accused has relied on following
judgments:-
1. In S.S Ramesh V/s K.Lokesh (Criminal
Revision Petition No.287/2015; D.D.16.08.2023)
Hon'ble High Court of Karnataka held that:-
"14. To enforce a liability under Section
138 of N.I.Act, it should be a legally
enforceable debt. In the present case, the
allegations of the complaint itself disclose
that the hand loan was advanced in the
year 2002 and the cheque was issued on
07.12.2007. In view of that matter, it is
evident that this cheque was issued after
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nearly 5 years and it is clearly barred by
law of limitation.
16. At the first instance it is a time barred
debt. Further admittedly the complainant
is not a money lender as admitted by
himself and question of he charging
interest or insisting for the same does not
arise at all. There is no endorsement on
any of the documents admitting the
personal liability as contemplated under
Section 56 of N.I.Act. Though there is a
financial transaction in favour of the
complainant, considering the fact that the
debt itself is barred by law of limitation,
presumption in favour of the complainant
cannot be drawn.
18. Both the courts below have failed to
appreciate the oral and documentary
evidence in proper perspective and in a
mechanical way on the basis of the
admission of the cheque and signature,
proceeded to convict the accused, which
is a erroneous finding. Both the courts
below have failed to appreciate the
evidence lead by the complainant
regarding debt being barred by time. It is
contended by the learned counsel for the
complainant/respondent that this issue
was not raised before both the courts
below, but when it is a question of law, it
is not required to be raised and it is the
duty of the court to consider and it is the
duty of the complainant to prove that the
liability is within the limitation period.
Hence both the courts have committed
grave error in convicting the accused for
the offence punishable under Section 138
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of N.I.Act, which has resulted in
miscarriage of justice. As such the
judgment of conviction and order of
sentence passed by the trial court and
confirmed by the appellate court are
perverse and erroneous and hence they
call for interference by this court in the
revision petition. As such the point for
consideration is answered in the
affirmative. Hence the revision petition
needs to be allowed."
2. In K.N.Raju V/s Manjunath.T.V., (Criminal
Appeal No.302/2010; D.D 16.03.2018), Hon'ble
High Court of Karnataka held that:-
"11. Article 21 of the Indian Limitation
Act, the period of limitation for recovery
of loan amount starts from the date on
which the amount has been paid.
Further, as per Section 18 of the
Limitation Act, a fresh period of
limitation shall be computed if any
acknowledgement of debt has been
executed by the borrower within the
prescribed period of limitation i.e.,
within three years from the date of
borrowing of the loan. Further Section
19 of the Limitation Act makes it clear
that a fresh period of limitation shall be
computed from the date of payment of
some money towards the loan in
question. Therefore, it is relevant to
extract Sections 18 and 19 of the
Limitation Act for the purpose of
deciding the issues under Section 138
of N.I. Act.
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Section 18
18. Effect of acknowledgment in
writing.--
(1) Where, before the expiration of the
prescribed period for a suit of
application in respect of any property or
right, an acknowledgment of liability in
respect of such property or right has
been made in writing signed by the
party against whom such property or
right is claimed, or by any person
through whom he derives his title or
liability, a fresh period of limitation
shall be computed from the time when
the acknowledgment was so signed.
(2) Where the writing containing the
acknowledgment is undated, oral
evidence may be given of the time when
it was signed; but subject to the
provisions of the Indian Evidence Act,
1872 (1 of 1872), oral evidence of its
contents shall not be received.
Explanation.--For the purposes of this
section,--
(a) an acknowledgment may be
sufficient though it omits to specify the
exact nature of the property or right, or
avers that the time for payment,
delivery, performance or enjoyment has
not yet come or is accompanied by a
refusal to pay, deliver, perform or
permit to enjoy, or is coupled with a
claim to set-off, or is addressed to a
person other than a person entitled to
the property or right;
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(b) the word "signed" means signed
either personally or by an agent duly
authorised in this behalf; and
(c) an application for the execution of a
decree or order shall not be deemed to
be an application in respect of any
property or right.
Section 19
19. Effect of payment on account of
debt or of interest on legacy.--Where
payment on account of a debt or of
interest on a legacy is made before the
expiration of the prescribed period by
the person liable to pay the debt or
legacy or by his agent duly authorised
in this behalf, a fresh period of
limitation shall be computed from the
time when the payment was made:
Provided that, save in the case of
payment of interest made before the 1st
day of January, 1928, an
acknowledgment of the payment
appears in the handwriting of, or in a
writing signed by, the person making
the payment.
" Explanation.--For the purposes of
this section,-- "
(a) where mortgaged land is in the
possession of the mortgagee, the receipt
of the rent or produce of such land shall
be deemed to be a payment;
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(b) "debt" does not include money
payable under a decree or order of a
court."
12. In the context of limitation point the
Trial Court observed in the impugned
judgment that it is not the case of the
complainant that the accused has paid
some amount towards the repayment of
the amount mentioned in the cheques in
question. In that view it was held that
the loan in question cannot be
considered as a time barred debt.
13. In so far as bouncing of cheques
relating to initiation of the proceedings
as under Section 200 Cr.P.C.
punishable under Section 138 of NI Act
that the limitation point is to be taken
into consideration and so also the
contention urged by the complainant. it
should be noted that the complainant
who examined himself as PW.1
specifically and categorically has
admitted himself in his cross
examination that the accused had given
the undated cheques, and the validity
of the loan agreement entered into
between complainant and accused had
lapsed which was for a period of three
years. The complainant has
categorically admitted that after the
expiry of the loan agreement, he had
presented the cheques mentioning the
dates and upon bouncing of them had
initiated the proceedings against the
accused under Section 138 of NI Act.
Therefore, on a careful reading of the
said admission of PW.1 it makes it
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clear that when the cheques in question
were issued by the accused the
cheques were undated. Further
according to the complaint himself the
cheques in question have been issued
to him on the date of execution of the
agreement as per Ex.P12. Even this fact
is mentioned in Ex.P12 which was
executed on 29.10.2004. Therefore,
these facts make it clear that the
cheques in question have been
presented for encashment after three
years ten months from the date of
issuance. Therefore, facts and
circumstances of this case fall within
the ambit of Section 138 of NI Act. The
Trial Court in this regard cited a
decision reported in ILR 2007
Karnataka 1708 between Vishnudas
Vs. Vijaya Mahantesh wherein this
Court has held as under:
"NI Act 1881 Section 138 - Offence
under - Acquittal - Appealed against
the issue of cheque without mentioning
the date-Admission of Pw.1 in the cross
examination that there was no debt as
on the date of issue of cheque. On facts,
held that on the date of handing over
the cheque, there was no debt due to be
paid by the respondent and wherefore
the cheque was not issued towards
discharge of any debt. The facts elicited
in the cross examination of Pw.1 that
the cheque was undated on the date of
its issue and the same was presented
for payment after 6 months from the
date of issue. The order of acquittal is
justified."
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The ratio laid down in the said
decision squarely applies to the facts
and circumstances of the present case
and so also the initiation of the
proceedings for the offence punishable
under Section 138 of the NI Act against
the accused."
3. In Sasseriyil Joseph V/s Devassia;
2001 CRI.L.J.24, Hon'ble High Court of Kerala
held that:-
"6. The only question that arises for
consideration in this appeal is whether
the respondent who issued the cheque
in question in discharge of a time
barred debt is liable under Section 138
of the Negotiable Instruments Act. In
this case, the complainant had
admitted that the loan was advanced
to the accused in January, 1988 and
the cheque was issued in February,
1991. Thus, by the time the cheque
was issued, the debt was barred by
limitation since there was no valid
acknowledgement of the liability
within the period of limitation.
According to the learned counsel for
the appellant, the promise made by the
accused to repay the time barred debt
would come within the purview of
Section 25(3) of the Indian Contract
Act. No doubt, the promise to pay a
time barred cheque (debt) is valid and
enforceable, if it is made in writing and
signed by the person to be charged
therewith. But, it is clear from Section
138 of the Negotiable Instruments Act
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that in order to attract the penal
provisions in the bouncing of a cheque
in Chapter XVII, it is essential that the
dishonoured cheque should have been
issued in discharge, wholly or in part,
or any debt or other liability of the
drawer to the payee. The explanation
to Section 138 defines the expression
debt or other liability as a legally
enforceable debt or other liability. The
explanation to Section 138 reads as
under :-
Explanation :- For the purpose of this
section, "debt or other liability" means
a legally enforceable debt or other
liability.
7. Thus, Section 138 is attracted only
if the cheque is issued for the
discharge of a legally enforceable debt
or other liability. In this case,
admittedly, the cheque in question
was issued in discharge of a time
barred debt. It cannot be said that a
time barred debt is a legally
enforceable debt. In this connection, it
is also relevant to note the decision of
the Andhra Pradesh High Court
reported in Girdhari Lal Rathi v. P.T.V.
Ramanujachari 1997 (2) Crimes 658. It
has been held in that case that if a
cheque is issued for a time barred debt
and it is dishonoured, the accused
cannot be convicted under Section 138
of the Negotiable Instruments Act
simply on the ground that the debt
was not legally recoverable. I am fully
in agreement with the view expressed
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by the learned Judge in the decision
referred to above."
20. The aforesaid judgment of Hon'ble High court of
Kerala was confirmed by the Hon'ble Supreme Court in
Sasseriyil Joseph V/s Devassia SLP.[(Crl.)No.1785/2001;
DD.10.09.2001], where it is held that:-
"We have heard learned counsel for
the petitioner. We have perused the
judgment of the High Court of Kerala
in Criminal Appeal No.161 of 1994
confirming the judgment/order of
acquittal passed by the Addl.Sessions
Judge, Thalassery in Criminal Appeal
No.212 of 1992 holding inter alia that
the cheque in question having been
issued by the accused for due which
was barred by limitation the penal
provision under Section 138 of the
Negotiable Instrument Act is not
attracted in the case."
21. The said judgment of the Hon'ble Supreme
Court has been relied by Hon'ble High Court of Karnataka
in K.V Subba Reday V/s N.Raghava Reddy (Criminal
Appeal No.545/2010; D.D. 28.02.2014), where it was held
that:-
"15. On consideration of aforestated
judgments, I find that the view taken
by Kerala High Court in Sasseriyil
Joseph's case (supra), has been
confirmed by the Supreme Court in
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Special Leave to Appeal (Crl.)
No.1785/2001. There are no reasons
for me to differ from the view taken by
the Kerala High Court and confirmed
by the Supreme Court in Special
Leave to Appeal (Crl.) No.1785/2001.
In the case on hand, even if the
averments of complaint and evidence
of complainant are accepted at their
face value, dishonoured cheque was
issued on 30.10.2001 to discharge the
debt, which had become due on
20.05.1997. Therefore, I hold
dishonoured cheque was issued
todischarge time barred debt."
22. In Girdhari Lal Rathi V/s P.T.V
Ramanujachari And Anr.; 1997(1) ALT (CRI) 509, Hon'ble
High Court of Allahabad held that:-
"7. The alleged loan was advanced in
the year 1985 and the cheque was
issued in the year 1990. By the time
the cheque was issued, the debt
appears to have been barred by
limitation because no acknowledgment
is alleged to have been obtained by the
appellant from the first respondent-
accused before expiry of three years
from the date of loan. Thus it is crystal
clear that the debt was not legally
enforceable at the time of issuance of
the cheque and, therefore, vide
Explanation to section 138 of the
Negotiable Instruments Act, which
reads as under :
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"Explanation. - Until the debt is legally
recoverable the drawer of the cheque
cannot be fastened with the liability
under section 138 of the Act."
8. There appears to be no force in the
contention of learned counsel for the
appellant that by issuance of the
cheque, the limitation for realising the
loan amount was extended, because
at the time of issuance of the cheque
the debt should be a legally
recoverable debt. In case a cheque is
issued for a time-barred debt and it is
dishonoured, the accused cannot be
convicted under section 138 of the
Negotiable Instruments Act simply on
the ground that the debt was not
legally recoverable."
23. In Smt.Ashwini Satish Bhat V/s Shri Jeevan
Divakar Lolienkar & Another; 2000(5)BOM CR 9,
Hon'ble High Court of Bombay held that:-
"6. The ruling upon which reliance
has been placed by the learned
advocate for the respondent is
applicable on all fours. In that case
loan was advanced in the year 1985
and the cheque was issued in the
year 1990.
By the time the cheque was issued,
the debt was barred by limitation
because no acknowledgement was
obtained before the expiry of 3 years
from the date of loan. In these
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circumstances, it was held there that
the debt was not legally enforceable
at the time of issuance of cheque and
the accused could not be punished
under section 138 of the said Act. In
the light of Explanation to the said
section, it was further held therein
that in case a cheque is issued for
time barred debt and it is
dishonoured, the accused cannot be
convicted under section 138 on the
ground that the said debt was not
legally recoverable."
24. It is true that in the present case, the accused
has not reduced evidence to that he is not guilty. In the
context it is worth to refer the judgment of Hon'ble
Supreme Court in the case of Krishna Janardhan Bhat
V/s Dattatreya G. Hedge; (2008) 4 SCC 54, where the
Hon'ble Supreme Court held that an accused for
discharging the burden of proof placed upon him under a
statute need not examine himself. He may discharge his
burden on the basis of the materials already brought on
record. An accused has a constitutional right to maintain
silence. In the present case, it is brought on record that
the loan was advanced on 21.11.2019 and the cheque was
drawn on 18.11.2023. It is evident that cheque was issued
after nearly four years after the disbursement of loan.
Complainant has not produced acknowledgment of debt by
the accused in terms of Section 18 of Limitation Act. There
is nothing to indicate that in between 21.11.2019 and
22 CC.No.52348/2024
KABC0C0083502024
18.11.2023, the accused has paid interest or loan
installment as claimed by the PW-1. Loan account
statement at Ex.P7 does not indicate transactions showing
such payment by the accused. Therefore, the debt alleged
by the complainant is clearly barred by time. As such, in
view of the principles laid down in the above said
judgments, the debt alleged by the complainant is not a
legally recoverable debt and thus, prosecution under
Section 138 of NI Act does not lie. Therefore, the accused is
entitled for acquittal. Accordingly, I answer Point No.1 in
the Negative.
25. Point No.2:-In view of the findings recorded on
Point No.1, I proceed to pass the following:
ORDER
Accused is not found guilty.
Acting under Section 255(1) of Cr.P.C.,
accused is acquitted of the offence punishable
under Sec.138 of Negotiable Instruments Act.
He is set at liberty.
Bail bonds executed by the accused shall
stand cancelled. Cash security deposited by
him is ordered to be continued till the expiry of
the appeal period.
Acting under Section 437-A Cr.P.C.,
accused is directed to execute fresh bail bond
for ₹2,00,000/- to appear before the higher
23 CC.No.52348/2024
KABC0C0083502024
court as and when such court issues notice in
respect of any appeal that would be preferred
by the complainant.
(Dictated to the Stenographer, transcript computerized by her, revised
corrected and then pronounced by me in the open Court on this the 27 th
day of January, 2025)
( SANTHOSH S.KUNDER )
XIV Addl. C.J.M., Bengaluru.
ANNEXURES
List of witness examined for the Complainant:
PW.1 Sri.Varun.R
List of documents marked for the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Admitted signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of legal notice dated 13.12.2023
Ex.P.4 Postal receipt
Ex.P.5 Postal rack consignment report
Ex.P.6 Board resolution of complainant dated
10.11.2023
Ex.P.7 Loan statement of the accused
Ex.P.8 to 10 Loan application, loan agreement and on
demand promissory note
List of witness examined for the defense Nil
List of documents marked for the defense Nil
XIV Addl.C.J.M., Bengaluru.
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