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TMI Blog2023 (9) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the aforesaid provisions shows as 31.12.2004 . Period of limitation - Whether the complainant be treated as holder of cheque on the date of presentation viz. 31.12.2004, to attract the offence under Section 138 of the N.I. Act? - HELD THAT:- In the present case, at no stage, evidence has been adduced by the complainant to show that within the prescribed period of limitation, the debt was acknowledged by the accused in writing, which is required under Sub-Section (3) of Section 25 of the Indian Contract Act. The period of limitation of three years is to be computed as provided under Article 19 of the Limitation Act, which provides for the money payable within three years from the date of loan. The date on which loan was advanced, makes the present transaction time barred as on 31.12.2004. Admittedly, the date of loan as emerged on record is 15.12.1998 and by applying the prescribed period of three years, as per Article 19 of the Limitation Act, would come to an end on 15.12.2001, whereas the disputed cheque bears the date 31.12.2004. In absence of any document being brought on record by the complainant that the debt was acknowledged during the prescribed period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instance of the appellant- original complainant. C. ARGUMENTS OF LEARNED ADVOCATES FOR THE PARTIES: (i) Advocate for the Appellants: 3. Mr. J. R. Shah, learned advocate on record for the appellants, has invited attention of this Court to the findings and reasons recorded in the impugned order by the learned Magistrate. He has submitted that while deciding the said complaint, learned Magistrate has arrived at conclusion that cheque issued against a time barred debt cannot be treated as acknowledgment in eye of law. On examination of disputed cheque, the learned Magistrate has noticed that in column of date, the year has been printed of 19 whereas the date endorsed in handwriting has been mentioned as 15.12.2004, and therefore, the learned Magistrate has observed that if at all disputed cheque has been given by the accused to the appellants in the year- 2004, then in the disputed cheque year 20 has not been printed. This has led the learned Magistrate to draw inference that cheque had been given in the year-1998, when the loan has been given by the appellant to the accused. In addition to the same, the learned Magistrate has further observed in the impugned jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption with regard to the complainant being holder of the cheque against the payment of whole or in part of legal debt or liability arises in favour of the complainant. In such circumstances, the presumption available under the law exist in favour of the complainant. The accused had failed to enter in the witness box nor he has led any cogent evidence on record. In such circumstances, there was no rebuttal of the aforesaid presumption, which existed in favour of the complainant. 3.3 Mr. J. R. Shah, learned advocate on record for the appellants, has relied upon the judgment of the Hon ble Apex Court in the case of A.V. Murthy vs. B.S. Nagabasavanna reported in (2002) 2 SCC 642. By referring to the aforesaid decision, he has submitted that in the said case, the cheque was issued in respect of loan taken four years back. The learned Sessions Judge as well as Single Judge of High Court proceeded to held that complaint proceedings were not maintainable as the amount advanced by the appellant to the accused, was about four years prior to the date of issuance of cheque. In view of Explanation appended to Section 138 of the N.I. Act, both the courts below had held that there was no en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court while recording the order of acquittal. He has submitted that cogent reasons have been assigned by the learned Magistrate while passing the impugned order. such recording of finding is arrived upon evaluation of the evidence of the complainant. 4.1 He has further submitted that at Exh.11, plea of accused came to be recorded, in which, he has pleaded not guilty and it is the say of the accused that so called transaction is of the year-1998 and the blank cheque was given to the deceased father of the complainant in the year-1998 and since amount was repaid, the said cheque was required to be returned. However, later on in the year-2004, has utilized the said cheque. In support of his aforesaid submissions, he invited attention of this Court to disputed cheque placed on record vide Exh.24, which clearly shows that date mentioned in printed form on cheque is 19 , however, date written is 31.12.2004. He also emphasized the fact that entire content of notice is printed one except the date is handwritten. He submitted that all these circumstances, which has come on record suggest the blank cheque was given in the year-1998 and was utilized later on in the year-2004. Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of amount already made in the year-1998 and thereafter, cheque in question being used in the year-2004, the preponderance of such probability about very factum of existence of legal debt has certainly arose. 4.5 On the issue of presumption, it is submitted that the presumption under Section 118 of the N.I. Act is rebuttable presumption. Mr. Dagli submitted that such rebuttal can also be drawn from the evidence led by the complainant. He submitted that the learned Magistrate has followed the aforesaid principles and upon appreciation of evidence, the impugned order of acquittal is recorded which is just and proper. 4.6 Learned advocate Mr. Dagli has referred to Section 138(a) of the N.I. Act and has submitted that what is relevant is the date on which, cheque in question is delivered not the date on which, the cheque is deposited. Admittedly, in the present case, the cheque is of the year- 1998, deposited in the year-2004, where making date of 31.12.2004. What was relevant is date on which cheque was given, signed and not the date on which cheque was deposited. 4.7 In support of his submissions, learned advocate Mr. Dagli has relied upon following authorities: (i) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate Mr. J.R. Shah submitted that the defence was raised in the reply given to the notice. Thus, in the aforesaid case, the complainant was aware about the defence put forward by the accused. He has further submitted that the courts below had taken notice of the provisions of Income Tax Act, which provides that any advance taken by way of loan of more than Rs.20,000/-, has to be made by way of account payee cheque only. In light of the aforesaid facts, the court noticed that the accused was not required to offer himself for examination at the evidence stage for discharging the burden of proof placed upon him under statute. 5.2 Further by referring to the decision of the Hon ble Supreme Court in the case of Mallavarapu Kasivisweswara Rao (supra) is concerned, learned advocate Mr. J.R. Shah has submitted that it was a case arising out of civil suit proceedings where the court had no occasion to examine the provisions of Section 139 of the N.I. Act. The suit filed by the appellant for recovery of an amount with interest, which came to be decreed by the learned Sessions Judge and was affirmed by the High Court in appeal. In civil appeal arising out of the order of High court, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment or rather part payment was received. 7.3 The learned Magistrate has further recorded that the complainant in his cross-examination has admitted that amount and date in the disputed cheque were entered by the accused. On appreciation of the aforesaid evidence of complainant, the learned Magistrate has recorded finding that non-disclosure of the date of repayment of amount of Rs.60,000/- leads to the inference that the complainant was having custody of undated blank cheque as on the date of transaction, which is 15.12.1998. 7.4 Upon recording of such facts, the learned Magistrate has arrived at conclusion that the cheque was handed over to the complainant by the accused as the security cheque for future debt, in case, the accused failed to make good the payment as agreed. Having noticed the aforesaid findings, the learned Magistrate has taken into consideration the issue of limitation period by observing that the original transaction relates to year-1998, whereas the disputed cheque bears the date of issuance as 31.12.2004. Thus, the learned Magistrate has treated such transaction as time barred debt , which is not enforceable in eye of law. Hence, the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed had made repayment of Rs.60,000/- in cash and remaining amount of Rs.1,40,000/- was offered by handing over cheque bearing No.70781 dated 31.12.2004 8.5 On further examination of the legal notice, this Court finds that the complainant has remained completely silent on the transaction of hand loan of an amount of Rs.2 Lakhs made in the year-1998 to be specific on15.12.1998 and the fact of repayment of part amount of Rs.60,000/-. In such circumstances, another possible view, which emerged on record is that the disputed cheque was issued by the bank of the accused in the year starting with figure 19 . The date entered in the column of the cheque, which is in the hand written as dated 31.12.2004 which seems to have been entered upon subsequently. As admitted by the complainant that amount, date and name are entered by the accused in his presence, the Court is of the view that attending circumstances have led support to the probable defence of accused about misuse of blank cheque. As emerged on record, the court has rightly shifted the burden upon the complainant to prove his case beyond reasonable doubt. Considering the defence raised by the accused and the circumstances with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the date of transaction as 15.12.1998. The date inscribed on the disputed cheque goes to indicate that the cheque was drawn on 31.12.2004. If one accepts the case of the complainant that by the issuance of cheque on 31.12.2004, there was acknowledgment of the debt by the accused, and hence, a fresh cause of action for the purpose of limitation is available to the complainant, the same is contrary to the legal settled position. Similar issue arose for consideration before the Hon ble Apex Court in the case of Sasseriyil Joseph vs. Devassia rendered in SLP (CRL) No.1785 of 2001 rendered on 10.09.2001. So far as the reliance placed by learned advocate Mr. Shah appearing for the appellants in the case of A.V. Murthy (supra) is concerned, it was a case where the appellant and his friends have advanced the loan about four years back and the respondent-accused had acknowledged this liability in his balancesheet . In such circumstances, even for the purpose of filing civil suit, such debt or liability would not be treated as barred by limitation. The copy of balance-sheet dated 31.03.1997 was produced before the trial court, it was in the background of these facts, the Hon ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 by the learned Judge in the decision referred to above. 17.2 Thus, the above discussion would answer even the argument in relation to section 25(3) of the Indian Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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