Gujarat High Court
M/S Radhekrishna Enterprise vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17963 of 2024
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M/S RADHEKRISHNA ENTERPRISE & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR B T BRAHMBHATT(5789) for the Applicant(s) No. 1,2,3,4
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/01/2025
ORAL ORDER
1. The present application is filed for the following prayers:
"1) To kindly admit and register the Petition and to kindly issue process to other side Respondents.
2) To kindly grant us ad interim stay over the proceedings of the learned trial court at Morbi in Criminal case No.2234/2023 in order to avoid abuse to the law and justice.
3) To kindly quash and set aside the present criminal case No.2234/2023 pending with the Learned Addl. Sr. civil judge and Chief Judicial Magistrate court- Morbi as filed against the Accused No. 1 to 4 on the grounds and facts mentioned under the Petition on merits.
4) To kindly pass an appropriate order as think fit by the Hon'ble court in the interest of law and justice."Page 1 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025
NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined
2. Heard learned advocate Mr. B.T.Brahmbhatt for the applicants and learned APP, Mr. Pranav Dhagat for the respondent - State.
3. Learned advocate Mr. Brahmbhatt for the applicants has submitted that the respondent No.2 has lent amount of Rs.45 Lakh to the applicants for their business needs through R.T.G.S. on 22.08.2017 and in-turn the applicants issued cheque No.000055 drawn at Kotak Mahindra Bank Limited dated 21.01.2023 for amount of Rs.9,82,500/- and the same was returned unpaid on 23.01.2023 with remarks "Fund Insufficient" as per the cheque return memo of HDFC Bank, Morbi Branch and the complaint was filed against the applicants before the trial Court during March, 2023. Therefore, he has submitted that considering the provisions of Article 118 of the Limitation Act, no recovery of dues can be made after a period of three years and therefore, he has submitted that the amount was lent on 22.08.2017 and the complaint was filed in March, 2023, after a period of five years and six months and therefore, the complaint is not tenable. He has further submitted that considering the provisions of Sections 25(3) of the Indian Contract Act, 1872 as well as Sections 18 and 19 of the Limitation Act, 1963, the present application may be considered accordingly and therefore, he further submits, that the present complaint filed Page 2 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined by the complainant is time barred and the same is required to be dismissed. Therefore, he submits that, the complaint itself is time barred and no further process can be issued by the concerned Court and therefore, the proceedings initiated by way of Criminal Case No.2234 of 2023 is required to be quashed and set aside, as prayed for in the present petition.
4. Learned APP, Mr. Dhagat has submitted that essentially the dispute is between two private parties, however, he submits that, the trial Court after considering the pros and cons of the matter, by way of detailed order dated 24.03.2023 process was issued and therefore, any grievance which is now sought to be agitated by way of defence can be considered at the time of trial and on such disputed question, this Court may not exercise its jurisdiction under Section 482 of the Criminal Procedure Code and therefore, he prays for dismissal of the present petition.
5. I have considered the rival submissions made at the bar, I have also considered the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (N.I.Act.). I have also perused the averments made in the application, the affidavit of verification as well as the order passed below Exh.1 by the learned trial Court on 24.03.2023. The learned trial Court has taken into consideration the Page 3 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined judgment of the Hon'ble Apex Court in case of Indian Bank Association Vs. Union of India reported in AIR 2014 SC 2528, reference was also made to the case of M/s. Meters and Instruments Vs. Kanchan Mehta reported in AIR 2017 SC 4594 as well as the direction given in Suo-Moto Writ Petition (CRL) No.2/2020 and passed the necessary order. The order dated 24.03.2023 passed by the learned trial Court below Exh.1, reads as under:
"This was allotted to this Court for proceedings according to law. Preferred the complaint with documents. This complaint is filed under sec.138 of Negotiable Instrument Act-1881. As per the direction of the Hon'ble Supreme Court of India in the case of Indian Bank Association Vs. Union of India reported as AIR 2014 SC 2528, present complaint came to be filed by the complainant along-with examination-in- chief as well as all original documents on which complainant relles.
Furthermore, the Hon'ble Supreme Court of India directed to Sue-Moto Writ Petition (CRL) No.2/2020 that, inquiry shall be conducted when such accused resides beyond the territorial jurisdiction of the court. Perusal the complaint, it appears that, accused resides beyond the territorial jurisdiction of this court. On perusal of complaint as well as examination-in-chief this Court found that, complainant deposited said cheque with his bank account, which is maintain with at Morbi and said Cheque dishonored. Hence, as per section 138 (b) of the Act, notice issued by the complainant to accused but accused failed to make payment of cheque amount. Hence, this court has jurisdiction to Page 4 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined try this case as per section-142 (2) (a) of the N.) Act.
Perused the entire record of the present complaint. Considering the facts of the present complaint, examination of chief of the complainant u/s 145 of N.L.Act and documentary evidence produced on record, there appears sufficient reasons to issue summons against the accused for the offence u/s 138 of N.1.Act. Therefore, present complaint is hereby order to be registered as criminal case and summons to be issued as per format specified in M/s. Meters and Instruments Vs. Kanchan Mehta reported AIR 2017 SC 4594 & SAXCHINSINGH RAKESHSINGH CHAUHAN VS. TRIBHUVAN BHAI BHAILAL VASAVA in Criminal Appeal No.30 of 2018, against the accused u/s 204 of Cr.P.C. for and offence u/s 138 of N.I. Act returnable on dt. 08/05/2023 Complainant will be also at his liberty to serve the summons on the accused persons through registered post as well as e-mail. (see. Direction no.2 of Indian Bank Association (Supra))"
5.1 Now, considering the facts of the present case, there is no dispute about the fact that the amount of loan was taken in the year 2017 but on the reading of the complaint, it transpires that, there was business transaction which wsa going on and the accused as well as the complainant had some business relation. Therefore, the fact that Rs.45 Lakh was lent in the year 2017 and the limitation is expiring in the year 2020, is not sufficient to infer at this stage. Moreover, the cause of action for the filing complaint under the provisions of Section 138 of the N.I. Act could have been Page 5 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined arisen after deposit of the cheque and thereafter, dishonour of such cheque in the account of the complainant. Therefore, in the present case, the cheque is dishonoured by memo of the bank dated 23.01.2023 by showing endorsement of "Funds Insufficient", thereafter, the notice is also sent to the accused on 16.02.2023 under the provisions of the Section 138 of the N.I.Act and the accused had received notice at address No.1 on 17.02.2023 and has refused the notice at address No.2 on 18.02.2023. Thereafter, it transpires that the complaint is filed, whereby, the verification is carried out on 21.03.2023. Therefore, it also transpires that the complaint is filed within the prescribed period of limitation, as required under the provisions of Section 138 of the N.I.Act. Now, the defence is sought to be taken on the basis of Sections 18 and 19 of the Limitation Act coupled with Section 25(3) of the Indian Contract Act. The aforesaid Sections are re-produced herein- below, for reference:
"Sections 18 and 19 in The Limitation Act, 1963:
18. Effect of acknowledgment in writing.--
(1) Where, before the expiration of the prescribed period for a suit of 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 Page 6 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined 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.
19. Effect of payment on account of debt or of interest on legacy.--
Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of Page 7 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined the payment appears in the handwriting of, or in a writing signed by, the person making the payment. Explanation.--
For the purposes of this section,--
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;
(b) "debt" does not include money payable under a decree or order of a court.
Section 25(3) in The Indian Contract Act, 1872:
25. Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.--
An agreement made without consideration is void, unless--
(1) xxx xx xx
(2) xxx xx xx
(3) It is 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.
In any of these cases, such an agreement is a contract. Explanation 1.--
Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made. Explanation 2.--
An Agreement to which the consent of the promisor is freely given is not void merely because the consideration is Page 8 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given. Illustrations
(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.
(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a contract.
(c) A finds B's purse and gives it to him. B promises to give A Rs. 50. This is a contract.
(d) A supports B's infant son. B promises to pay A's expenses in so doing. This is a contract.
(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt. This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A's consent to the agreement was freely given. The agreement is a contract notwithstanding the inadequacy of the consideration.
(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given. The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A's consent was freely given."
5.2 The contention that the complaint is filed under Section 138 of the N.I.Act is time barred dues, the same prima facie seems attractive but not required to be accepted, for the reason that the present application is filed for quashing of Page 9 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined the complaint. Technically, no prayer is sought in the prayer clause by challenging the order of issuance of process, which is passed below Exh.1 on 24.03.2023. Therefore, in absence of challenge of that process also, the present application is not maintainable.
5.3 Moreover, the contention raised in the present application with regard to the bar of limitation is not required to be considered in detail as that may cause prejudice to the right of the present applicants during the course of trial for contesting the proceedings on merits. However, at this stage it cannot be said that in absence of any other material and without giving opportunity to the parties to lead the evidence and to establish their respective case before the concerned trial Court, the contention with regard to the limitation cannot be accepted, more particularly, considering the fact that there is continuous business relationship between the parties from the year 2017 till 2023. 5.4 Therefore, on bare reading of the complaint, it cannot be said that the complaint is not maintainable in eye of law. It is always open for the applicant to raise all their defence available under the law at the time of trial and the Court after considering the case of the respective parties, shall decide such issue including the aspect that such complaint Page 10 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025 NEUTRAL CITATION R/CR.MA/17963/2024 ORDER DATED: 03/01/2025 undefined could be filed after period of limitation, as alleged by the present applicants.
5.5 It is also not the case of the applicants herein that the Court has repeatedly asked the counsel for the applicants that he has paid the entire amount and thereafter, the complainant is again asking for the recovery of the amount. On the contrary, the applicants have admitted in the pleadings that the complainant has lent amount of Rs.45 Lakh in the year 2017 and therefore, it is very premature to say at this stage that there is no legitimate dues existing, even, on the ground of bar of limitation. The issue of limitation can be considered at the time of trial, after giving opportunity to the respective parties.
6. For the foregoing reasons, this Court finds no reason to interfere in the present matter, at this stage. Therefore, the present application lacks merit and the same is required to be dismissed.
7. Accordingly, the present application is dismissed in limine.
(SANDEEP N. BHATT,J) *S. BAROT * Page 11 of 11 Uploaded by SLOCK BAROT(HC01781) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:44 IST 2025