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TMI Blog2020 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard and perused the records. 3. Before adverting to the grounds of appeal, it is just and necessary to bear in mind few facts of the case as per the complaint averments. The complainant has filed a complaint u/s.200 of Cr.PC. making allegations under section 138 of the Negotiable Instruments Act, stating that, the complainant is a businessman and accused was interested in Film production. As both are known to each other, the accused had borrowed a sum of Rs. 75,000/- as loan from the complainant for the purpose of film production. In this connection, for the repayment of the said amount, the accused had issued a cheque bearing No.592344, dated 7.6.2006 for a sum of Rs. 50,000/- drawn on The Hong Kong and Shanghi Banking Corporation Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally recoverable debt as on the date of issuance of the cheque or earlier and therefore, the cheque was a stale cheque and it is a time barred debt claimed to be recovered by the complainant. Mainly, on these two grounds, the trial Court has acquitted the accused. The trial Court in fact, has raised a presumption in favour of the complainant u/s.139 of the Negotiable Instruments Act. The trial Court has formulated a point as to - "Whether the accused has rebutted the presumption or not?" Holding that the accused has rebutted the presumption on the above said two grounds, the trial Court has acquitted the accused. 5. The tenor of the cross examination of the complainant shows that there is no denial with regard to the issuance of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant is a total stranger to him etc., In the course of cross examination, he has categorically stated that Ex.P-1, the cheque and the Ex.P-9 documents was given to one Swaminathan and he has taken loan of Rs. 50,000/- from Swamynathan. Therefore, he has issued a cheque to the said Swamynathan and he has repaid the said amount of Rs. 50,000/- but the said cheque was not returned to him in spite of his request, therefore, borrowing of Rs. 50,000/- and issuance of the cheque in favour of one Swamynathan is stated but the said Swamynathan has not been examined before the court. He has not denied in the course of cross examination that, the cheque does not belong to him and he has not signed the cheque etc., On the other hand, he has admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise to pay time barred debt - Moreover, undisputed signatures on cheques by Accused constitute agreement to pay time barred debt - Offence under Section 138 made out - Appeal allowed" 8. In view of the above said decision, once the cheque is proved that the same was issued with reference to any debt, even if it is a time barred debt, in such an eventuality such stand is not available to the accused that there is no existence of any debt or liability. Therefore, on the said ground, the acquittal recorded by the trial court is not proper. 9. In another decision reported in 2007(2) KLJ 19 between S. Parameshwarappa S/o. late Sannasiddegowda and P. Ratna W/o.S.Parameshwarappa Vs. S.Choodappa S/o.M.A. Shankarappa, wherein, this court has obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Ramakrishnan and Gangadharan Nair & Another with reference to the time barred debt and the cheque being issued covering even the time barred debt is valid. 11. In another ruling of the Bombay High court in Criminal Appeal No.57/2006 dated 21.7.2008 between Shyamsundar Babu Naik Dessai Vs. Baban Anant Naik, wherein the court has observed that time barred debt, can also be covered by acknowledgement by issuing a cheque. 12. Therefore, under the above said facts and circumstances, the order of the Trial court is illegal. On those grounds, the accused should not have been acquitted. 13. Though the learned counsel relied upon a decision reported in 2014 (12) SCC 539 between Indus Airways Pvt.Ltd., & Others Vs. Magnum Aviation Pvt.Ltd., & ..... X X X X Extracts X X X X X X X X Extracts X X X X
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