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2006 DIGILAW 512 (BOM)

Satish Kumar Mor v. M. V. Rajeswara Rao

2006-03-31

P.SWAROOP REDDY

body2006
JUDGMENT :- In both these petitions, the question raised for consideration and the petitioner is one and the same. First respondent in Crl.P.No.4294 of 2002 is the father and in Crl.P.No.4295 of 2002, it is his son. As the question raised for consideration is one and the same both the petitions are heard together and disposed of by this common order. 2. Both these petitions are filed by the petitioner-accused for quashing the proceedings in C.C. Nos. 105 and 106 of 2000 on the file of the learned XVII Metropolitan Magistrate, Hyderabad. 3. The facts of the case are as follows: The petitioner-accused has borrowed a sum of Rs.50,000-00/- from the first respondent in each case. 'The cheques issued by him towards repayment of the same, were dishonoured. As such after giving statutory notice, the de facto complainants filed private complaints under Section 138 of the Negotiable Instruments Act. 4. The petitioner herein filed the present petitions for quashing the proceedings on two grounds - (1) The complaints are filed for recovery of time barred debt and as such there is no legally enforceable debt; and (2) The complaints are filed after the period of limitation contemplated under Section 142 of the Negotiable Instruments Act. 5. Now, the point for consideration is whether there are any grounds for allowing these petitions. 6. In Crl.P.No.4494 of 2002, arising out of C.C. No.105 of 2000. In the Xerox copy of the Promissory note filed, the date is mentioned as 3-11-1992 and at the place of signature the date is again put as 3-11-1997. This 3-11-1997 is obviously put subsequently, as there is no column provided for date there and the handwriting there is also different. Further in Crl.P.No.4295 of 2002, arising out of C.C. No. 106 of 2000, the Promissory note is dated 3-11-1992 and at no other place the date is put. In this case receipt is also filed, which shows the date as 3-11-1992. 7. The contention of the learned Counsel for the first respondent in both the petitions is that for 3-11-1997, the stroke for writing "7" after "9" is put differently and on account of that instead of "7" it is appearing like "2" and actually the date is "7" only. It is impossible to accept this contention. It is possible that at one place there can be a mistake, but not at all the places. It is impossible to accept this contention. It is possible that at one place there can be a mistake, but not at all the places. Apart from that, in the statutory notice issued also, the second respondent de facto complainant has not stated the date of the promissory note and has simply stated that you have under the promissory note borrowed a sum of Rs.50,000-00/- from me. Obviously, deliberately, avoiding the date. 8. The learned Counsel for the first respondent further contends that the petitioner has not issued any reply notice stating that the date of promissory note was 3-11-1992 and not 3-11-1997 and on account of this, the contention of the petitioner cannot be accepted. I am not inclined to accept this contention of the first respondent, as the petitioner never received the notice and the notice was only returned and in the notice, the date of promissory note is not mentioned. As such he was not aware as to whether in the notice the date was put as 3-11-1992 or 3-11-1997. Further the document clearly shows the date as 3-11-1992 without any ambiguity, as such there is no question of treating the dates of promissory notes as 3-11-1997. Thus, the first question has to be answered in favour of the petitioner. On account of this, it has to be held that both the complaints are filed for recovering time barred debts and there are no legally enforceable debts. 9. Coming to the second question in both the petitions, the notices were returned on 30-12-1999 and the complaints were filed on 14-2-2000. As such the complaints are filed with a delay of one day, as fifteen days from 30-12-1999 would be over by 13-1-2000 and one month thereafter would be 13-2-2000. Therefore, the complaints filed on 13-2-2000 are barred by limitation. 10. The learned Counsel for the petitioner, in his support of his contention relied on a decision of the Hon 'ble Supreme Court in M/s. SIL Import, USA Vs. M/s. Exim Aides Silk Exporters, AIR 1999 SC 1609 : [1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.)] and also a decision of our High . Court in Pennar Steel Ltd. Vs. S. Ansari, 2003(2) LS 120 : [2003(3) ALL MR (JOURNAL) 21]. In both the above decisions the position is clarified. M/s. Exim Aides Silk Exporters, AIR 1999 SC 1609 : [1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.)] and also a decision of our High . Court in Pennar Steel Ltd. Vs. S. Ansari, 2003(2) LS 120 : [2003(3) ALL MR (JOURNAL) 21]. In both the above decisions the position is clarified. Thus the second question also has to be answered in favour of the petitioner. 11. In view of the above findings both the petitions are liable to allowed. 12. In the result both the petitions are allowed. The proceedings against the petitioner accused in C.C. Nos.10S and 106 of 2000 pending on the file of the learned XVII Metropolitan Magistrate, Hyderabad are hereby quashed.