CASE TITLE:
Prasad Raykar v. B T Dinesh.
DATE OF ORDER:
2 January 2023.
JUDGE(S):
Hon’ble Mr. Justice K. Natarajan.
SUBJECT:
In the present case, the appellant has filed an appeal with the higher court against the acquittal of the accused by the Second Additional District and Sessions Judge. The appellant is asking the higher court to set aside this judgment and confirm the conviction and sentence passed by the Principal Senior Civil Judge and CJM, Davanagere.
BRIEF FACTS:
- In the present case, the appellant has filed a private complaint against the respondent-accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.
- The appellant alleges that the respondent-accused's father borrowed Rs.2,60,000/- from the appellant and agreed to pay 2% interest per month by executing an on-demand promissory note.
- After the death of the respondent-accused's father, the appellant asked the respondent-accused to repay the loan amount.
- The respondent-accused then issued two cheques which were dishonored as the account was closed.
- The trial Court found the accused guilty and convicted and sentenced him to pay Rs.4,95,000/- and in default, he shall undergo simple imprisonment for one year. Out of this, Rs.4,50,000/- was payable to the complainant as compensation under Section 357 of Cr.P.C.
- The accused has challenged the judgment of conviction passed by the trial court.
- The Sessions Judge (the appellate court) has accepted the appeal and set aside the conviction and sentence, acquitting the accused.
- The complainant has then filed an appeal to a higher court in order to challenge the Sessions Judge's decision.
QUESTIONS RAISED:
- Whether the complainant is able to prove that there is legally enforceable debt payable by the respondent- accused?
- Whether the judgment of the First Appellate Court is liable to be set aside?
ARGUMENTS ADVANCED BY THE COMPLAINANT:
- The complainant's lawyer is arguing that the ruling was erroneous and not correct.
- The accused had undertaken to pay off the loan with a cash payment of 10,000 rupees, followed by two cheques, but the First Appellate Court did not consider these payments when setting aside the judgment of conviction and sentence.
- The counsel is therefore asking for the judgment of acquittal to be set aside and the conviction and sentence of the trial court to be reinstated.
ARGUMENTS ADVANCED BY THE RESPONDENT:
- The respondent counsel has argued that the accused does not have a legally enforceable debt that can be used to file a complaint against him.
- The debt has passed the statute of limitations, making it unenforceable.
- The counsel has therefore supported the decision of the First Appellate Court and requested that the appeal be dismissed.
ANALYSIS OF THE COURT:
- The main contention of the counsel for the accused is that there is no legally enforceable debt payable by him and that the debt is time bound and therefore unenforceable. The counsel for the appellant has referred to Section 29 of the N.I. Act which states that the legal representative of the deceased person is liable to discharge the liability of the father. The counsel has also relied upon the judgment of the Hon’ble Supreme Court in the case of ICDS Ltd. vs. Beena Shabeer and Another [(2002) 6 SCC 426].
- The Hon'ble Supreme Court has upheld the judgment of the trial court wherein a guarantor issued cheque towards payment of the dues outstanding against the principal debtor and the complaint was filed against the guarantor as the cheque issued by the guarantor came to be dishonored. Therefore, the accused is liable to repay the loan to the complainant and is liable for the punishment under Section 138 of N.I. Act.
- In this case, the respondent claimed that the debt was time barred, as the loan was taken out in 2003 and the cheque was issued four years later.
- The complainant stated that the accused had already paid Rs.10,000 in cash and had issued two cheques towards the debt.
- The court found that the accused was liable for discharging his father's liability, as the amount had already been paid and the debt was renewed. The court further found that the First Appellate Court had erred in acquitting the accused, as they had not considered Section 29 of the Negotiable Instruments Act. Therefore, the judgment of the First Appellate Court was set aside.
CONCLUSION
In conclusion, the appeal filed by the complainant was allowed and the judgment of the First Appellate Court was set aside. The conviction and sentence of the trial court was reinstated. The respondent-accused was held liable for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act and ordered to pay Rs.4,95,000/- as compensation with one year imprisonment in case of default.
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