9911796707
TMI Blog2013 (2) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... the said firm. The complainant had worked as the Manager of the Babulnath Temple Trust from 1977 to 1998 where the accused used to come for the purpose of internal audit; hence, the accused knew the complainant since several years. During the period 1991 to 1997, the accused, in instalments, had taken money from the complainant and, in all, an amount of ₹ 42 lakhs was outstanding which was to be recovered by the complainant. In respect of such outstanding amount, the accused had issued eight cheques drawn in favour of the complainant on the Bombay Mercantile Co-operative Bank Ltd. for a total sum of ₹ 42 lakhs. On 24th June, 2002, the accused had signed eight cheques and given the same to the complainant. The accused had given the complainant cheque No.114110 for ₹ 15,00,000/-, cheque No.114111 for ₹ 5,00,000/-, cheque No.114112 for ₹ 5,00,000/-, cheque No.114113 for ₹ 5,00,000/-, cheque No.114114 for ₹ 5,00,000/-, cheque No.624532 for ₹ 6,00,000/-, cheque No.624533 for ₹ 50,000/- and cheque No.927198 for ₹ 50,000/-. At the time of issuing the cheques, the accused had assured him that the moment the cheques were presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheques which were given to the complainant had been misused to be more believable. On a preponderance of probabilities, the learned Magistrate found that the case of the accused appears to be more credible than the case of the complainant and held that the prosecution has not established the charges levelled against the accused beyond reasonable doubt and acquitted him. 4. Mr. R.C. Jani, learned advocate for the appellant assailed the impugned order by submitting that the learned Magistrate has failed to appreciate the evidence on record in proper perspective and more particularly, has ignored very significant evidence which had been brought on record by the complainant in the nature of the compromise purshis filed by the accused (Exh.94) whereby he had agreed to settle the matter with the complainant and pay compensation of ₹ 25 lakhs to him. It was submitted that in view of the above admission of the accused, which formed part of the proceedings, the complainant had proved that the accused had accepted the existence of a legally enforceable debt and that the said settlement purshis could also be treated as an acknowledgment by the accused of the debt, which would aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en clearly made out and the learned Magistrate was, therefore, not justified in acquitting the accused. 5. On the other hand, Mr. Dharmesh Shah, learned advocate for the respondent No.2 accused invited the attention of the court to the deposition of the respondent No.2- accused who had examined himself at Exh.92 to submit that the defence through the testimony of the said witness has duly proved that the cheques had not been issued to the complainant in respect of any amount paid by him and that the cheques which had been handed over in trust to the complainant as the Manager of the society had been misused by him. This is evident from the fact that five of the cheques allegedly issued by the accused are of one serial number whereas two other cheques bear a totally different serial number and are, therefore, issued from different cheque books whereas the last cheque bears a totally different number and is issued from a third cheque book. It was submitted that a person issuing any cheque on the same day to the same person, ordinarily would issue one cheque of the entire amount unless the same were of different dates. In the present case, the accused is alleged to have issued eigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned judgment and order reveals that the learned Magistrate has referred to the facts of the case as well as the depositions of the witnesses in great detail. Hence, for the sake of brevity, it is not necessary to reiterate the same. 7. A perusal of the record of the case reveals that it is the case of the complainant that he had given different amounts at different times between the period 1991 to 1997 and that ultimately he was entitled to recover an amount of ₹ 42 lakhs from the accused. That in respect of such amount, on 24th June, 2002, the accused had issued eight different cheques as described hereinabove, in favour of the complainant drawn on the Bombay Mercantile Co-operative Bank Ltd. In support of his case, the complainant has examined himself at Exh.34 wherein he has deposed the facts stated in the complaint. In his examination-in-chief, the complainant has stated that the notice under section 138 had been issued to the accused through the Mumbai Post Office by way of Registered A.D. post on 17th August, 2002 which had been served upon the accused on 22nd August, 2002 in respect of which an acknowledgment slip had been issued. In his crossexamination, it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the said cheques had been sent for clearing but were dishonoured and returned unpaid by the Bombay Mercantile Co-operative Bank Ltd., Fort Branch, Mumbai. The said cheques were returned alongwith the return memos dated 29th July, 2002 by the said bank for the reasons already referred to hereinabove. He has deposed that the original cheques alongwith the return memos were delivered to the complainant on 8th August, 2002. 9. Thus, from the testimony of the complainant and the above-referred two witnesses, what is established is that eight cheques for a total amount of ₹ 42 lakhs bearing the signature of the accused had been presented by the complainant before the State Bank of India, Gandhinagar and that the same were dishonoured for the reason that in respect of five cheques, there were instructions of stop payment and in respect of the other three cheques, funds were insufficient. 10. It may be noted that in the present case, the respondent No.2 has examined himself at Exh.92 to bring out the fact that he was acquainted with the complainant since prior to 1987 as he (the complainant) was the Manager of the Babulnath temple and he was the internal auditor. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. In his cross-examination, he has admitted that the handwriting in Exh.94 is his. 11. In the light of the evidence which has come on record, one thing is evident that even according to the complainant, whatever amount was paid to the accused was between the periods 1991 to 1997. The complainant has nowhere stated any details regarding the time and the manner in which such amounts were paid. It appears to be the case of the complainant that he is entitled to recover ₹ 42 lakhs from the accused towards outstanding dues. Evidently therefore, the period of limitation for instituting a suit for recovery of such amount would commence from the date on which the said amount was given to the accused, which would be different dates ranging from 1991 to 1997. Even taking the last date namely, the year 1997 into account, the cheques which are alleged to have been issued in the year 2002 have clearly been issued after the period of limitation for instituting any proceedings for recovery of such amount had elapsed. Evidently therefore, the cheques had been issued in respect of time-barred debts. The explanation to section 138 of the Act provides that for the purpose of the said secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in the above referred decision. Thus, for the purpose of falling within the ambit of section 138 of the Act, one of the ingredients which is required to be satisfied is that there is a legally enforceable debt. In the facts of the present case, as noted earlier, the amounts in question had been paid during the period 1991 to 1997, under the circumstances, the period of limitation which is three years had clearly expired by the end of the year 2000. Therefore, the cheques which were issued in the year 2002, evidently were issued in respect of time-barred debts. In view of the explanation to section 138 of the Act, a debt or liability referred to in section 138 of the Act means a legally enforceable debt. Under the circumstances, even if the case of the complainant is accepted that such cheques had, in fact, been issued by the accused towards a debt of ₹ 42 lakhs, even then, the same would be relatable to a time-barred debt and, therefore, cannot be said to have been issued in respect of a legally enforceable debt. The provisions of section 138 of the Act would, therefore, not be attracted in the facts of the present case. 14. The Andhra Pradesh High Court in Girdhari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length and detail and has given reasons in support of each of the findings recorded by him. On behalf of the appellant, nothing has been pointed out to show that the findings recorded by the learned Magistrate are, in any manner, perverse. 17. Much reliance has been placed by the complainant on the document Exh.94 which is in the nature of a purshis allegedly submitted by the accused in some other proceeding for the purpose of contending that vide the said purshis the accused had acknowledged the existence of the debt and as such the period of limitation stood extended. From the evidence which has come on record, it is apparent that such purshis had not been filed in the present proceedings and hence, the question of the accused having acknowledged the debt and thereby extended the period of limitation would not be applicable. Moreover, the said document is dated 22nd September, 2004 which is evidently after the date of issuance of the cheques in question and the lodging of the present complaint. Section 18 of the Limitation Act, 1963 would, therefore, not come to the rescue of the appellant as such acknowledgement in writing has not been made before the expiration of the prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
