Gujarat High Court
Tribhuvan Finlease And Developers Pvt. ... vs State Of Gujarat on 6 December, 2023
NEUTRAL CITATION
R/CR.MA/21130/2023 ORDER DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 21130
of 2023
In R/CRIMINAL APPEAL NO. 2691 of 2023
With
R/CRIMINAL APPEAL NO. 2691 of 2023
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TRIBHUVAN FINLEASE AND DEVELOPERS PVT. LTD THRO JIVRAJBHAI
BABABHAI DESAI
Versus
STATE OF GUJARAT
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Appearance:
HARSH V GAJJAR(7828) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS VRUNDA SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 06/12/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 27.03.2023 passed by the learned Additional Chief Judicial Magistrate, Visnagar in Criminal Case No.1244 of 2017.
2. Heard advocate Mr.Harsh Gajjar for the applicant and perused the impugned judgment and order of the trial Court.
3. Learned advocate Mr.Gajjar submits that the judgment and order passed by the learned trial Court is only on the ground of time barred debt. The learned advocate submits that it is held by the learned trial Court, while acquitting the respondent - accused, that Page 1 of 5 Downloaded on : Wed Dec 06 20:51:19 IST 2023 NEUTRAL CITATION R/CR.MA/21130/2023 ORDER DATED: 06/12/2023 undefined though the loan, which was sanctioned, was dated 11.06.2014. The disputed cheque is dated 23.08.2017. The learned advocate submits that the learned trial Court held that it is time barred debt as it was beyond the period of limitation of three years. The learned advocate relies on the provisions of Section 18 of the Limitation Act, which reproduced hereinbelow:-
"18. Effect of acknowledgment in writing.--(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.
Explanation.--For the purposes of this section,--
(a) an acknowledgment 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."
4. The learned advocate further relies on the decision rendered by the Hon'ble Apex Court in the case of S. Natarajan v/s. Sama Dharman and another reported in (2021) 6 SCC 413. Para 8 of the Page 2 of 5 Downloaded on : Wed Dec 06 20:51:19 IST 2023 NEUTRAL CITATION R/CR.MA/21130/2023 ORDER DATED: 06/12/2023 undefined said decision reproduced hereinbelow:-
"8. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the reasons "account closed". The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under sub-Section (3) of Section 25 of the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. After highlighting further facts of the case, this Court held that at this stage of proceedings, to say that the cheque drawn by the accused was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. In the circumstances, this Court set aside the order passed by the High Court Page 3 of 5 Downloaded on : Wed Dec 06 20:51:19 IST 2023 NEUTRAL CITATION R/CR.MA/21130/2023 ORDER DATED: 06/12/2023 undefined upholding the Sessions Court's order quashing the entire proceedings on the ground that the debt or liability is barred by limitation and, hence, the complaint was not maintainable. It is, therefore, clear that the contention urged by the appellant herein can be examined only during trial since it involves examination of facts."
5. The learned advocate further relies on the Full Bench decision of this Court in the case of Hindustan Apparel Industries v/s. Fair Deal Corporation reported in 2000(2) GLR 1422 and relies on the following paragraph:-
"What is important to be noticed from the above noted decisions of the Hon'ble Supreme Court is that in the first place a cheque is undoubtedly an acknowledgement of right or debt or liability and when the same is not issued as a post dated cheque, date of issuance of cheque would assume importance, whether subsequently it is honoured or dishonoured. It is thus at the stage of issuance of the cheque that there surfaces an intention on the part of the debtor to acknowledge the liability/right/debt owing to the person in whose favour the cheque is issued. In case the cheque is honoured it would undoubtedly amount to part payment in writing and the same would fall under Sec. 19 of the Act (section 20 of the previous Act). While dealing with such part payment in the context of date of such part payment, facts of each case will assume importance in the light of the aforesaid two decisions of the Hon'ble Supreme Court. In this view of the position of law reflecting upon issuance of a cheque, it has to be stated that a cheque would prima-facie amount to an admission of debt unless a contrary intention has been expressed by the person issuing the cheque. Such an admission of payment of debt is to be determined with reference to the point of time at which the purported admission was made, that is to say, when the cheque was issued. Merely because subsequently such a cheque is dishonoured and the admission is retracted the admission or the acknowledgement can hardly be said to cease as an admission/acknowledgement of liability. To hold otherwise would be contrary to fair play between the parties, and justice and equity. With profound respect to the Bench in Chintaman's case (supra), we are unable to endorse the view expressed on the question in the said decision. We endorse the view expressed by the Patna High Court in Page 4 of 5 Downloaded on : Wed Dec 06 20:51:19 IST 2023 NEUTRAL CITATION R/CR.MA/21130/2023 ORDER DATED: 06/12/2023 undefined Rajpatiprasad's case (supra), which is recent in point of time in so far as decisions referred to on behalf of the plaintiff are concerned. The view expressed by the Ld. Single Judge in the referring judgment also merits acceptance."
6. The learned advocate submits that while issuing the cheque, the respondent had acknowledged the debt and therefore, fresh limitation period would start from the date when the cheque was issued. The learned advocate further submits that ignoring the above settled position, the learned trial Court had acquitted the respondent - accused from the charges and therefore, it is prayed to allow this application, seeking leave to prefer an appeal and admit the appeal.
7. Considering the avernments made in the application and submissions made by the learned advocate appearing for the applicant, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed.
ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Learned A.P.P. Ms.Vrunda Shah waives service of notice of admission on behalf of respondent -
State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J) Hitesh Page 5 of 5 Downloaded on : Wed Dec 06 20:51:19 IST 2023