Dismissed

Shri. Marthand S/O Ganapat Kshirsagar v. Shri Shekhar S/O Sakendra Sinha

Karnataka HC22 Feb 2024CRL.RP/100190/2021

Case brief

AI extract

What is this about?

Revision against conviction under Section 138 NI Act for dishonour of a cheque issued towards a hand loan. The court held the debt was not time-barred and that cheques issued even for time-barred debts attract Section 138; the presumption stood unrebutted as the accused neither cross-examined PW-1 nor led defence evidence. Petition dismissed.

What the court decided

AI extract

Shri. Marthand S/O Ganapat Kshirsagar Vs Shri Shekhar S/O… — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 22^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

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CRIMINAL REVISION PETITION NO. 100190 OF 2021 (397)

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BETWEEN:

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SHRI MARTHAND S/O GANAPAT KSHIRSAGAR, AGE: 38 YEARS, OCCUPATION: SERVICE, R/O. NO.29, NEW CANTONMENT CHAWL CAMP, BELAGAVI-590001, TALUKA AND DISTRICT: BELAGAVI.

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…PETITIONER

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(BY SRI DEEPAK S. KULKARNI, ADVOCATE)

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AND:

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ANNAPURNA CHINNAPPA DANDAGAL

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Digitally signed by ANNAPURNA CHINNAPPA DANDAGAL Date: 2024.02.23 10:25:50 +0530

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SHRI SHEKHAR S/O SAKENDRA SINHA, AGE: 45 YEARS, OCCUPATION: BUSINESS, R/O. H.NO.13, SURVEY NO.33, 3RD CROSS, GAYATRI NAGAR, KHASBAG, BELAGAVI-590003, TALUKA AND DISTRICT. BELAGAVI.

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…RESPONDENT

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(BY SMT. ARCHANA MAGADUM, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397(1) R/W SECTION 401 OF CR.P.C., SEEKING TO CALL FOR AND EXAMINE THE RECORDS OF A PROCEEDING IN THE CRIMINAL APPEAL NO.39/2019, FROM THE X ADDITIONAL SESSIONS JUDGE, BELAGAVI AND INT THE CRIMINAL CASE NO.700/2018 FROM THE VII JMFC COURT, BELAGAVI, AND THE JUDGMENT AND ORDER DATED 07.06.2019 PASSED BY THE X ADDITIONAL SESSIONS JUDGE, BELAGAVI IN CRIMINAL APPEAL NO.39/2019 CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE VII JMFC COURT, BELAGAVI IN CC

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NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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NO.700/2018 DATED 10.01.2019 WHEREIN THE REVISION PETITIONER HAS BEEN CONVICTED FOR AN OFFENCE PUNISHABLE U/S 138 OF THE N.I. ACT AND HE HAS BEEN SENTENCED TO PAY A SUM OF RS.4,09,000/- AND IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6 MONTHS, MAY KINDLY BE SET ASIDE BY ALLOWING THIS REVISION PETITION.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition under Sections 397(1) read with 401 Cr.PC is filed with a prayer to set aside the judgment and order of conviction and sentence dated 10.01.2019 passed by the Court of VII JMFC, Belagavi, in C.C.No.700/2018 and the judgment and order dated 07.06.2019 passed by the Court of X Addl. Sessions Judge, Belagavi, in Crl.A.No.39/2019.

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Heard the learned Counsel for the parties.

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Respondent herein had initiated proceedings before the Trial Court in C.C.No.700/2018 against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’). It is the case of the respondent/complainant that petitioner had borrowed hand

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3 - NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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loan of Rs.4,00,000/- from him in the month of February 2014 and towards repayment of the said amount, after several requests, he had issued the cheque in question bearing No.173974 dated 15.03.2017 drawn on Central Bank of India, Cantonment Board, Campus Branch, Belagavi, for a sum of Rs.4,00,000/- in favour of the complainant. The said cheque on presentation for realization was dishonoured by the drawee bank with an endorsement ‘funds insufficient’. The respondentcomplainant got issued a legal notice to the petitioner and inspite of service of notice, petitioner had not repaid the amount covered under the cheque. Therefore, respondent had approached the Trial Court by filing the complaint with a prayer to convict the petitioner for the offence punishable under Section 138 of the Act.

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In the said proceedings, the petitioner appeared before the Trial Court and pleaded not guilty. The respondent/complainant to prove his case had examined himself as PW-1 before the Trial Court and had got marked five documents as Exs.P-1 to P-5. The petitioner/accused had not cross-examined PW-1 nor had he led any defence evidence. The Trial Court, thereafter, heard the arguments on both sides

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4 - NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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and vide the impugned judgment and order dated 10.01.2019 passed in C.C.No.700/2018 had convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced

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him to pay fine of Rs.4,09,000/- and in default to undergo simple imprisonment for a period of six months. The said judgment and order of conviction and sentence passed by the Trial Court was confirmed by the Appellate Court in Crl.A.No.39/2019 by its judgment and order dated 07.06.2019. Being aggrieved by the same, the petitioner is before this Court.

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Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that the cheque in question was issued towards the time barred debt, and therefore, the courts below were not justified in convicting the petitioner. He submits that merely for the reason that the petitioner has not put forward any defence, he cannot be convicted for the offence punishable under Section 138 of the Act when the material on record, prima facie, show that the

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cheque was not issued towards legally recoverable debt.

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5 - NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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Per contra, learned Counsel for the respondent submits that since the petitioner had made a grievance before this Court that the Trial Court had not granted him proper opportunity to cross-examine PW-1, this Court in exercise of its power under Section 391 Cr.PC had passed an order on 19.01.2024 granting an opportunity to the petitioner to crossexamine PW-1. Inspite of such an order, the petitioner has not cross-examined PW-1, in effect, he has not put forward any defence, and therefore, the presumption that arose against him stood unrebutted. He has not disputed the signature found in the cheque nor has he disputed that the cheque was drawn on the account maintained by him in the drawee bank. He also submits that this Court has held that there is no legal bar for the debtor agreeing to pay the time barred debt and the dishonoured cheques issued towards repayment of time barred debt does constitute an offence under Section 138 of the Act. In support of this contention, he has placed reliance on the judgment of this Court in the case of H.NARASIMHA RAO VS R.VENKATARAM – ILR 2006 KAR 4242 and S.V.ENTERPRISES, REPRESENTED BY PROPRIETOR VS TULASIRAM – 2019 SCC

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OnLine Kar 2692 . He has also placed reliance on the judgment

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NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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of the Division Bench of the Bombay High Court in the case of

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DINESH B.CHOKSHI VS RAHUL VASUDEO BHATT & ANOTHER –

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2013(2) Mh.L.J. 130 .

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The respondent/complainant in order to prove his case has examined himself as PW-1 before the Trial Court and also has got marked five documents as Exs.P-1 to P-5. Ex.P-1 is the cheque in question which is issued by the petitioner. The signature found in the cheque in question is not in dispute nor it is disputed that the cheque in question is of the account maintained by the petitioner with the drawee bank. Therefore, there is a presumption available against him as provided under Section 139 of the Act. Unless the said presumption is rebutted by the petitioner by raising a probable defence, he is liable to be convicted for the offence under Section 138 of the Act.

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Petitioner has not raised any defence in the present case. He has not issued any reply to the legal notice nor has he cross-examined PW-1/complainant. He has also not led any defence evidence. Considering the grievance of the petitioner that he was not granted sufficient opportunity by the Trial Court to cross-examine PW-1 and put forward his defence, this

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NC: 2024:KHC-D:4388 CRL.RP No. 100190 of 2021

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Court in exercise of its power under Section 391 Cr.PC, had permitted the petitioner to cross-examine PW-1. Inspite of such an opportunity given to the petitioner, he has not availed of the same. Therefore, the presumption that arose against him stood unrebutted.

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Learned Counsel for the petitioner has raised a ground before this Court that the debt is time barred, and therefore, the courts below were not justified in convicting the petitioner for the offence under Section 138 of the Act.

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The hand loan was borrowed by the petitioner on 05.02.2014 and it is the specific plea of the respondent that the petitioner had agreed to repay the said amount within a period of two years from the date of borrowing. The cheque in question was issued on 15.03.2017 towards repayment of the amount borrowed. The Hon’ble Supreme Court in the case of

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K.HYMAVATHI VS STATE OF ANDHRA PRADESH & ANOTHER –

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2023 SCC OnLine SC 1128 , has held that the period of limitation shall commence on the expiry of the time fixed for payment of the amount borrowed. Therefore, having regard to the facts of the case, it cannot be said that the debt was time

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barred debt in the present case. Even otherwise, the coordinate bench of this Court in S.V.Enterprises’ case supra, has held that once it is proved that the cheque in question was issued with reference to any debt, even if it is a time barred debt, in an eventuality such stand is not available to the accused there there is no existence of any debt or liability.

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In Narasimha Rao’s case supra, the coordinate bench of this Court has held that there is no legal bar for the debtor agreeing to pay the time barred debt, the dishonoured cheques issued towards repayment of time barred debt does constitute an offence under Section 138 of the Act.

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The Division Bench of the Bombay High Court in Dinesh B.Chokshi’s case, has held that cheque drawn in discharge of a time barred debt or liability becomes enforceable by Section 25(3) of the Contract Act and dishonor of such cheque would amount to an offence under Section 138 of the Act.

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The Trial Court has convicted the petitioner for the offence under Section 138 of the Act on the ground that the petitioner has not successfully rebutted the presumption that arose against him under Sections 118 & 139 of the Act.

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Considering the facts and circumstances of the present case, I am of the opinion that the Trial Court was fully justified in convicting the petitioner. The Appellate Court has confirmed the

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said judgment and order of conviction. Even the sentence imposed by the Trial Court which is confirmed by the Appellate Court cannot be said to harsh or excessive. Under the circumstances, I do not find any good ground to interfere with the impugned judgment and order of conviction and sentence passed by the courts below. Accordingly, the revision petition is dismissed.

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Sd/JUDGE

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KK CT:GSM List No.: 1 Sl No.: 49

Shri. Marthand S/O Ganapat Kshirsagar v. Shri Shekhar S/O Sakendra Sinha

Case brief

What is this about?

What the court decided

Shri. Marthand S/O Ganapat Kshirsagar v. Shri Shekhar S/O Sakendra Sinha

Case brief

What is this about?

What the court decided

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