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TMI Blog2009 (7) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... has executed a pro-note. The second accused has admitted and acknowledged the liability and with the intention to repay the same, he has given the cheque in question on 15.08.1997 for a sum of ₹ 54,000/- in favour of the complainant and the same has been presented in the concerned bank and the concerned bank has retuned the cheque in question stating 'funds insufficient' and subsequently a legal notice has been issued and even after receipt of the same, the accused have failed to discharge their liability and under the said circumstances, the accused are said to have committed offence under Section 138 of the Negotiable Instruments Act, 1881. 3.In the complaint filed in C.C.No.539 of 1998, it is stated that the first accused is a partnership firm and in which the second accused is one of its partner. The second accused for himself and on behalf of the first accused has approached the complainant for getting loan and he received money in the year 1990 and on 10.03.1995 the amount has been calculated to the tune of ₹ 21,080/- and on the same day, he has executed two pro-notes, each for a sum of ₹ 10,540/- and he issued the cheque in question for a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter considering all the evidence available on record, has found both the accused guilty under Section 138 of the Negotiable Instruments Act, 1881 and imposed a fine of ₹ 1,000/- with default clause against the first accused and six months simple imprisonment against the second accused and also directed both the accused to pay the amount mentioned in each cheque as compensation. Against the conviction and sentence passed in C.C.Nos.199, 277, 539 540 of 1998, the accused as appellants have preferred Criminal Appeal Nos.133 to 136 of 2000 on the file of the first appellate Court. 7.The first appellate Court, after hearing both sides and after reappraising the evidence available on record, has allowed all the appeals and thereby set aside the conviction and sentence passed by the trial Court in Calendar Case Nos.199, 277, 539 540 of 1998. Against the judgment passed by the first appellate Court in Criminal Appeal Nos.133 to 136 of 2000, these criminal appeals have been filed at the instance of the complainant in each case. 8.The contentions mentioned in all the complaints are that the first accused is a partnership firm and the second accused is one of its partners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l apply unless- (a)the cheque has been presented to the bank within a period of six months from the date of on which it is drawn or within the period of its validity, whichever is earlier. (b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purpose of this section, debt or other liability means a legally enforceable debt or other liability. 12.From the explanation given to the said section one can easily discern that the cheque in question should be given in connection with a legally enforceable debt or other liability and in a nut-shell on the date of issuance of cheque in question a legally enforceable debt or other liability must be in existence. If a cheque has been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion that the cheques in question have not been issued so as to discharge a legally enforceable debt and therefore, the conclusion arrived at by the first appellate Court in each appeal is perfectly correct and the same need not be interfered with. 15.In order to perpend the rival submissions made by either counsel, the Court has to look into the allegations made in the complaints. In all the complaints, it has been specifically stated that the second accused on behalf of the first accused has approached the complainants in the year 1990 and obtained the amount mentioned in the respective complaint by way of loan and on 10.03.1995 the amounts due have been arrived at and on the same day, the second accused on behalf of the first accused has executed pro-notes in favour of the respective complainant and also issued the cheques in question. 16.The only legal point that has now winched to the fore in the present criminal appeals is ; Whether the cheques in question have been issued in respect of legally enforceable debts or not? 17.The specific case of the complainant in each complaint is that the second accused on behalf of the first accused has received loan in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be dismissed. 20.The learned counsel appearing for the appellants/complainants has also advanced another limb of argument stating that in the instant cases, no defence has been taken on the side of the accused with regard to limitation and therefore, the Court is not bound to look into it, but the first appellate Court has unnecessarily given a finding to the effect that the cheques in question have been given only in respect of time barred debts and the finding given by the first appellate Court is nothing but supernumerary and the same is liable to be rejected. 21.It is an everlasting principle of law that a person who institutes a legal proceeding is bound to say that the same is within the contour of limitation. But it is not the duty of opposite party to take the plea of limitation as a defence and the Court is having ample power to look into limitation even though the same has not been taken as a defence. Further in the present cases, the complainants have not at all explained that the alleged transactions made between them and accused are not barred by limitation. Therefore, the entire arguments advanced by the learned counsel appearing for the appellants/ co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the presumption contains in Sections 118 and 139 of the Negotiable Instruments Act, the Court has to presume that the cheque had been issued for debt or other liability and the presumption is rebuttable. In the instant cases, the specific contention of the complainant is that the loans in question have been given in the year 1990 and subsequently amounts have been calculated till 10.03.1995 and on the same day, pro-notes have come into existence and thereafter, the cheques in question have been issued on various dates. But, the above aspects have not been proved on the side of the complainants. Under the said circumstances, the presumptions available under Sections 118 and 139 of the Negotiable Instruments Act cannot be drawn in favour of the complaints. e)In (III) 2007 BC 752 Karnataka (S.Parameshwarappa and another Vs. S.Choodappa) it has been held that the accused-drawer cannot seek dismissal of complaint on the ground of want of consideration or legally enforceable debt for issuance of the cheque. Only after cheque presented after its valid period, such contentions would arise. It has already been discussed in detail and ultimately found that the cheque in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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