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TMI Blog2019 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... bility, but a perusal of the material placed on record reveals that the said document pertains to the account being maintained by the respondent No.2 (appellant therein) and is about the balance which got forwarded on 1.4.2009 and cash entry of 5000/-, dated 2.6.2009, and even if the said document is deemed to be correct, the said payment of 5000/- on 2.6.2009 does not extend the period of limitation since the cash payment was made after the expiry of the period of limitation - Though, it is correct that once the signatures are admitted on the cheque, existence of legally enforceable debt or liability has to be presumed, but it is to be noted that the said presumption is rebuttable and in the instant matter, the respondent No.2 has been able to rebut the said presumption by showing that the liability for payment against the goods supplied arose in July 2005 and the limitation to file the case on the said liability expired in July 2008. It is well settled that the presumption, which is contained in Section 139 of the NI Act, only raises the presumption that the cheque has been issued for the discharge of a debt or liability and existence of legally recoverable debt is not a matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, and hence a complaint under Section 138 of the NI Act was filed by the petitioners. 5. The Trial Court, after hearing both the parties, vide judgment dated 11.07.2012 convicted the respondent No.2 for committing the offence under Section 138 of the NI Act. 6. The Trial Court, vide its judgment dated 11.07.2012, observed that the respondent No.2 had admitted his signatures on the cheque as well as the issuance of the cheque to the petitioner No.2. However, it was the stand of respondent No.2 that the said cheque was handed over to the petitioner No.2 for the purpose of opening of an account and not against the discharge of any liability. In this regard, the petitioner no.2 was cross-examined, but no defence evidence was led by the respondent No.2. The Trial Court held that the cross-examination of the petitioner No.2 was unimpeached and the respondent No.2 had failed to establish that his bank account was opened by the petitioner No.2. Further, it was held by the Trial Court that once the signatures are admitted on the cheque, existence of legally enforceable debt or liability has to be presumed and further, as the respondent No. 2 had failed to establish the possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the language of Section 139 of the NI Act. Accordingly, the Appellate Court, following the ratio laid down in the judgments titled as Rangappa v. S. Mohan, (2010) 11 SCC (441), Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal, 2009 (110) DRJ 592 and Kamalaksha Laxman Prabhu v. S.G. Mayekar, 2009 (1) DCR 426 allowed the appeal filed by the respondent No.2 and set aside the judgment of conviction and the order on sentence passed by the Trial Court. 11. Aggrieved by the aforesaid impugned order passed by the Appellate Court, the petitioners have preferred the present revision petition. 12. I have given my thoughtful consideration to the submissions of the learned counsel for the parties and have also gone through the written submissions filed by them as well as the judgments relied upon by them. 13. It is contented by the learned counsel for the petitioners that the Appellate Court had failed to appreciate the fact that where the accused has not disputed his signature on the dishonoured cheque in question, it constitutes an agreement and/or promise by the debtor to pay the time-barred debt. 14. To buttress her arguments, the learned counsel for the petitioners has relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mently contended that the petitioners had based and substantiated their case on the afore-mentioned bills bearing nos. 5419 and 5442 in their complaint, but neither the petitioners had placed on record the afore-mentioned bills nor there is any mentioning of the consideration of the said bills in the complaint. 22. It is lastly contended by the learned counsel for the respondent No.2 that the petitioners has failed to place on record any evidence to show that any demand of payment was raised against the respondent No.2 during the duration of 4 years, i.e. from the date of the transaction till the alleged issuance of the cheque in question. 23. In light of the above submissions of the learned counsel for the parties, it would be appropriate and necessary to first reproduce the provisions of Section 138 of the NI Act, which read as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account -Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right, (b) the word "signed" means signed either personally or by an agent duly authorised in this behalf, and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right." 25. A bare perusal of the aforesaid provision clearly goes on to show that for analyzing the limitation of a liability beyond a period of three years, the acknowledgment, if any, must be there before the period of limitation is over, which is not the case in hand. 26. Further, it has been held time and again by the Apex Court as well as by the various High Courts that mere giving of a cheque, without anything more, will not revive a time-barred debt, because cheque has to be given, as contemplated by the explanatory, in discharge of a legally enforceable debt. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed hereunder: "10.…This acknowledgment even as per the complaint was much after the statutory period of three years which is the prescribed period of limitation for the recovery of an outstanding amount. An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment." 29. A perusal of the record reveals that, in the instant case, the last business transaction between the parties took place on 26.7.2005 and thereafter, no other business transaction took place between the parties. The Appellate Court has, hence, rightly held that in these circumstances, the cause of action to enforce the said liability, as per law, agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. … 43. But, we may at the same time notice the development of law in this area in some jurisdictions. 44. The presumption of innocence is a human right. [See Narender Singh and Anr. v. State of M.P.: 2004 CriLJ 2842, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. 2005 CriLJ 2533 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director 2007 CriLJ 304] Article 6(2) of he European Convention on Human Rights provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law". Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same." 33. Therefore, I do not agree with the contention raised by the learned counsel for the petitioners that the Appellate Court has misinterpreted Section 139 of the NI Act. The Appellate Court has rightly held that the alleged responsibility of the respondent No.2, if any, had already become time-barred as on the date of the issuance of cheque and, therefore, the same cannot be said to be in discharge of a legally enforceable debt or liability. The judgments relied upon by the petitioners are of no help in view of the legal position and the law discussed hereinabove. 34. In my opinion, the view taken by the Appellate Court is reasonable and plausible. Accordingly, I have no hesitation to hold that there is no infirmity or flaw in the impugned order dated 05.12.2012 passed by the Additional Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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