Criminal Misc. No. 106-MA of 2007 v. Satnam Singh

Present: Mr. Rajesh Punj, Advocate, for the applicant-appellant. Mr. Sunil Agnihotri, Advocate, for the respondent. SHAM SUNDER, J. This application, under Section 378(4) Cr.P.C., seeking leave to file the appeal, against the judgement of acquittal, dated

01.12.06, rendered by the Court of Judicial Magistrate 1st Class, Jalandhar, has been instituted, by the applicant-appellant.

2. A friendly loan of Rs. 3,50,000/-, in the month of April, 2003, was obtained, by the accused/respondent. In order to discharge his legally enforceable liability, cheque, bearing No. 592222, dated

06.10.04, in the sum of Rs. 3,50,000/-, drawn on Oriental Bank of Commerce, Mukerian, was issued, by the accused/respondent, in Criminal Misc. No. 106-MA of 2007 2 favour of the complainant, from his Account No. 431. On presentation, it was dishonoured. A legal notice, was given. Despite service, the amount, was not paid. Ultimately, a criminal complaint, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be called as the 'Act' only), was filed.

3. Notice, containing the sum and substance of the allegations, was served, upon the accused/respondent, to which, he pleaded not guilty.

4. The complainant, himself appeared, in the witness box, as CW1, and also proved certain documents.

5. The statement of the accused, under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him. He pleaded false implication. He stated that the cheque, had not been issued, by him, in the discharge of his legally enforceable liability. He did not lead any evidence in defence.

6. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, acquitted the accused/respondent, on the ground, that the cheque, had not been issued, in relation to the discharge of legally enforceable liability.

7. Feeling aggrieved, the instant application, seeking leave to file the appeal, has been instituted.

8. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully.

9. The Counsel for the applicant-appellant, submitted that the Court below, was wrong, in coming to the conclusion that, in respect Criminal Misc. No. 106-MA of 2007 3 of a time barred debt, if a cheque, is issued, that cannot be said to be, in relation to the discharge of a legally enforceable liability. He further submitted that, in fact, the cheque, was issued, by the accused/respondent, in relation to his legally enforceable liability. He also placed reliance, on A.R.M. Nizmathuallah Vs. Vaduganathan, 2008(1), RCR (Criminal), 181 (Madras), H. Narasimha Rao Vs. Venkataram R., 2007, Criminal Law Journal, 583 (Karnataka), and Ramakrishnan Vs. Gangadharan Nair and another, 2007, Criminal Law Journal, 1486 (Kerala), in support of his contention, that the cheque, in respect of a time barred debt, can also be said to be issued, in relation to the discharge of legally enforceable liability, and a complaint, under Section 138 of the Act, was maintainable. He further submitted that the judgement of acquittal, rendered by the Court below, being illegal and perverse, is liable to be set aside.

10. On the other hand, the Counsel for the respondent, submitted that, the trial Court, was right, in coming to the conclusion, that the loan, was advanced, in the month of April, 2001, and the cheque, issued by the accused/respondent, was of 06.10.04. He further submitted that the debt, had become time barred, by the time, the cheque, was issued, and, therefore, it could not be said, to have been issued, in the discharge of the legally enforceable liability. He also placed reliance, on Kiran Finance Company, Hoshiarpur Vs. Sukhdev Kishan, 2006(2), Criminal Court Cases, 190, decided by this Court, in support of his contention. He further submitted that the judgement of acquittal, being legal and valid, is liable to be Criminal Misc. No. 106-MA of 2007 4 upheld. He further submitted that, no ground, is made out, for grant of leave to institute the appeal.

11. After giving my thoughtful consideration to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the application, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The trial Court, rightly came to the conclusion, that during the course of cross-examination, the complainant, admitted that the entire amount of Rs. 3,50,000/-, was advanced, by him, to the accused, in the month of April, 2001. The cheque issued by the respondent, bore the date 06.10.04. The Court below, was, thus, right in holding that, no evidence, was produced, that the debt was acknowledged within the period of limitation, i.e. within three years, when the same had become due. The time barred debt, therefore, could not be recovered. The Court below, was, thus, also right, in placing reliance, on Kiran Finance Company, Hoshiarpur's case (supra), to come to the conclusion, that a cheque issued, in respect of a time barred debt, could not be said to have been issued, in respect of the discharge of a legally enforceable liability. The cases, on which, the reliance, was placed, by the Counsel for the applicant-appellant, were decided, by the High Courts, other than this Court. The principle of law, laid down, in A.R.M. Nizmathuallah's, H. Narasimha Rao's, and, Ramakrishnan's cases (supra), decided by the High Courts of Madras, Karnataka, and, Kerala, respectively, which runs contrary to the principle of law laid down in Kiran Finance Company, Criminal Misc. No. 106-MA of 2007 5 Hoshiarpur's, case (supra), decided by this Court, shall not hold the field. The judgement of acquittal, rendered by the trial Court, therefore, cannot be said to be illegal and perverse. No ground, therefore, is made out, for grant of leave to institute the appeal.

12. For the reasons recorded above, Criminal Misc. No. 106- MA of 2007, is dismissed.

19.01.2010 Amodh (SHAM SUNDER) JUDGE