16/01/2023

Prasad Raykar S/o Vidyadhar V Raikar Vs. B T Dinesh S/o T A Bharamappa - 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.

 High Court of Karnataka (02.01.2023) in Prasad Raykar S/o  Vidyadhar V Raikar Vs. B T Dinesh S/o T A Bharamappa  [Criminal Appeal No.725 of 2011]  held that;

  • 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. 

 

Excerpts of the order;

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 Anr. 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.  

 

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