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2008 DIGILAW 646 (BOM)

Kamalaksha Laxman Prabhu v. S. G. Mayekar

2008-04-30

V.K.TAHILRAMANI

body2008
JUDGMENT 1. The applicant-original complainant has preferred this application for leave to appeal against the judgment and order dated 16.10.2007 passed by the learned Magistrate, 43rd Court, Borivali, Mumbai in Case No. 1035/S/2006. By the said judgment and order, the learned Magistrate has acquitted the Respondent No.1-accused of the offence under Section 138 of Negotiable Instruments Act. 2. I have heard the learned advocate for the applicant. I have perused the evidence which has been produced by him as well as the impugned judgment and order. 3. The case of the complainant is that the accused had taken friendly loan from him between May, 1998 and February, 2000. For discharging the said loan, three cheques came to be issued by the accused for the amount of Rs.20,000/-, Rs.10,000/- and Rs.9,500/- totaling to Rs.39,500/-. As the said cheques were not honoured, the complaint came to be filed. 4. The learned Magistrate acquitted the Respondent-accused on the ground that the loans were advanced in May 1998 and February 2000 and the cheques came to be issued in the year 2006. The last transaction had taken place in between the complainant and accused on 29.2.2000. The period of six years had elapsed in between the last transaction and the date when the cheques were issued. The learned Magistrate observed that in view of Section 19 of the Limitation Act, the debt has to be recovered within a period of three years from the last date on which the amount was paid. No evidence has been led by the complainant to prove the fact that since the date of the last transaction till the issuance of cheque by the accused, the accused has admitted his liability in writing. The learned Magistrate placed reliance on the decision in the case of Shri.Jagdamba Parisar Sahakari Pat Sanstha Maryadit Vs. Shravan s/o Ajinath Ukirde and Anr. reported in 2007 ALL MR (Cri.) 1043. In the said case it is observed that when the cheques are issued after the period of limitation, the debt is time barred debt. In view of the explanation of Section 138 of Negotiable Instruments Act, the penal liability under Section 138 arises in case the cheque was found to have been issued for discharge of legally enforceable debt or liability. By holding the same, the accused was acquitted. 5. Useful reference may be made to the case of Smt.Ashwini Satish Bhat Vs. In view of the explanation of Section 138 of Negotiable Instruments Act, the penal liability under Section 138 arises in case the cheque was found to have been issued for discharge of legally enforceable debt or liability. By holding the same, the accused was acquitted. 5. Useful reference may be made to the case of Smt.Ashwini Satish Bhat Vs. Shri.Jeevan Divakar Lolienkar and another reported in 2000 (5) BOM.C.R.9, Therein it was held that dishonour of the cheque cannot be treated as acknowledgement under Section 18 of the Limitation Act, since the acknowledgement should be before the period of limitation is over and that it should be in writing. Admittedly, in the present case, there is no acknowledgment in writing on the side of the accused. Due to said reason, even though cheques are issued by the accused in the year 2006, said cheques are issued for the payment of time barred debt, hence, it cannot be said that the cheques were issued for discharging legally enforceable liability. A similar view has been taken in the case of Girdharilal Lal Rathi V. Ramanujachari, 1997 (2) Crimes 658 . 6. The learned advocate for the applicant has placed reliance on the decision of this Court in the case of Narendra V. Kanekar Vs. Bardez Taluka Co.Op. Housing Mortgage Society Ltd. and Anr. reported in 2006(6) Bom.C.R. 874. [ 2006 (3) ALL MR 673]. In the said case also the cheque was issued beyond the period of limitation and this Court held in favour of the complainant. However, facts in the present case and the case of Narendra [2006(3) ALL MR 673 (supra) are quite different. In the case of Narendra [2006(3) ALL MR 673] (supra), lateron the accused had given an undertaking or promise and hence, due to this, Court held in favour of the complainant as it furnishes the fresh cause of action. In fact, in the said case, the Court held that "mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the explanatory in discharge of a legally enforceable debt. There is no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgement of liability made in writing before the expiration of the period of limitation, is enough to start a fresh period of limitation. There is no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgement of liability made in writing before the expiration of the period of limitation, is enough to start a fresh period of limitation. Likewise, when a debt has become barred by limitation, there is also section 25(3) of the Contract Act, by which, a written promise to pay, furnishes a fresh cause of action." 7. Thereafter, reliance was placed on the decision of learned Single Judge of this Court, dated 19.9.2006 in Criminal Appeal No. 367 of 2004 in Purshottam s/o Maniklal Gandhi V. Manohar K.Deshmukh and Anr. (Since reported in 2007 ALL MR (Cri) 332). Reliance was placed on the observations in paragraph 23 wherein it is observed as under: "Since a cheque is a promise made in writing to pay certain sum, it would be covered by Clause 3 of the Section 25 and therefore, it would not be open for the accused to say that there is no legally enforceable liability. In view of this, the learned counsel for the appellant submitted that the learned Magistrate was in error in acquitting the accused holding that the cheque was not given for legally enforceable liability". 8. Earlier decisions of this Court in the case of Ashwini S. Bhat and Girdharilal Rathi (supra) and other decisions were not considered in the case of Purshottam [2007 ALL MR (Cri) 332(supra). In view of the earlier two decisions in the case of Ashwini S. Bhat and Girdharilal Rathi (supra) as well as later decision of this Court in the case of Shri. Jagdamba [2007 ALL MR (Cri) 1043] (supra), I am inclined to take the same view as in Ashwini S.Bhatt, Girdharilal Rathi and Shri. Jagdamba (supra). 9. Looking to the evidence on record and the above legal position, in my opinion, the view taken by the learned Magistrate is a reasonable and possible view. 10. It is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar and C. Anthony Vs. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 S.C. 66 Khedu Mohton and Ors. Vs. State of Bihar and C. Anthony Vs. K.G.Raghavan Nair (2003) 1 SCC 1 : [2003 ALL MR (Cri) 130 (S.C.)]. In the case of Anthony C. Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. 11. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. 12. In this view of the matter, application for leave to appeal is rejected. Appeal rejected.