Bombay High Court
Santaji Yuvak Bigar Sheti Credit ... vs Dewanand S/O Babulalji ... on 16 September, 2016
Bench: S.B. Shukre
appa193.15.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPA) NO. 193 OF 2015
Santaji Yuvak Bigar Sheti Credit
Co-operative Society Ltd., Narkhed,
through its Manager, Shri Ashok
s/o Namdeorao Khante, aged about 40 yrs.,
Occp. Service, r/o Narkhed, Tah. Narkhed,
District - Nagpur. :: APPELLANT
.. Versus
..
1. Shri Dewanand s/o Babulalji Mandaogade,
aged about 52 yrs., Occp. Business,
Prop. Abhinaya Electricals & Engineering,
Narkhed, r/o Shahar Vibhag Rangaripura,
Narkhed, Tah. Narkhed, Distt. Nagpur.
2. The State of Maharashtra,
through PSO, Narkhed. :: RESPONDENT
...................................................................................................................................
Shri S. G. Karmarkar, Advocate for the applicant/appellant.
Shri P. K. Mishra, Advocate for respondent No.1.
A.P.P. for the State-respondent No.2.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 16 AUGUST, 2016.
O R A L J U D G M E N T
O R A L J U D G M E N T
1. Heard.
2. Admit.
3. Heard finally by consent.
4. The respondent was prosecuted for dishonour of cheque
bearing No.088739 dated 17/10/2012 issued by him for
Rs.1,07,000/-, which was drawn on Nagpur District Central
Co-operative Bank, Zilla Parishad Branch at Nagpur and issued in
favour of the appellant. On merits of the case, the learned Judicial
Magistrate, First Class found that the complainant/appellant failed to
prove that the cheque in question was issued by the respondent for
legally recoverable debt and, therefore, acquitted him of the offence
punishable under Section 138 of the Negotiable Instruments Act by his
judgment and order dated 16/01/2015.
5. Learned Counsel for the appellant submits that the learned
Magistrate has taken an erroneous view that the debt represented by
the amount of the cheque in question was not legally recoverable as it
was barred by limitation period of three years. He submits that the
Limitation Act is a general statute and although it provides limitation
for recovery of money to be of three years, it does not apply to a
registered society like the appellant and under the Maharashtra
Co-operative Societies Act, the limitation period provided for recovery
of money due to the society is of more years and he submits that in
fact there is no limitation prescribed under the Societies Act and that
would mean that even after hundred years also, the loan amount
could be recovered by the society. He further submits that the
impugned judgment is perverse and needs to be quashed and set
aside.
6. Shri Mishra, learned Counsel for respondent No.1 submits
that no provision has been shown to the learned Magistrate which
gives an indefinite period of time for recovery of loan by the society
and, therefore, he submits that there is no merit in the contention of
the learned Counsel for the appellant. He further submits that another
ground on which the acquittal has been granted is of the cheque in
question having been proved to be issued as security for repayment of
the loan and if one considers the evidence available in this regard, one
would be convinced that it establishes the fact that the cheque in
question was issued only as security. Therefore, in his opinion, there
is no merit in the appeal.
7. Upon consideration of the impugned judgment and order
and also the record of the case, I am of the view that there is
considerable force in the argument advanced by learned Counsel for
respondent No.1 and there is no merit in the argument of the learned
Counsel for the appellant.
8. No evidence has been laid by the appellant to show that the
society has been given indefinite period of time for recovery of its
loan. Therefore, the finding recorded by the trial Court that the
cheque that was issued for repayment of the loan about thirteen years
after the sanction of loan without there being any acknowledgment of
the debt or any payment coupled with acknowledgment of the debt
would have to be held as representing a time-barred debt. The view
taken by the trial Court thus cannot be found to be perverse.
9. As rightly submitted by the learned Counsel for respondent
No.1, there is also another ground on which the impugned judgment
and order rests. The cheque in question, according to the defence
taken by the respondent, was issued as only security for repayment of
loan to the appellant. The cheque in question was carrying No.088739
and it was a part of the cheque book of which the other cheques
bearing Nos. 088737 to 088744 were also the part out of which two
cheqe leaves, i.e. cheque Nos. 088737 and 088745, were shown to be
used, from the entries in the pass book at Exh.46, respectively on
19/4/1999 and 08/11/1999. This would suggest that cheque
No.088739, i.e. the cheque in question, could not have been
reasonably used in the year 2012. So, the defence taken by the
appellant has been more than probablised. The learned Magistrate has
rightly held that the cheque that was issued was only issued as a
security for loan, and could not be held to be issued for discharge of
legally recoverable debt, there being in existence no debt on the date
on which the cheque was issued by following the ratio of the judgment
in the case of Ramkrishna Urban Co-operative Credit Soc. Ltd. Ahmednagar
Vs. Shri Rajendra Bhagchand Warma - 2010 ALL MR (Cri) 1098.
10. In the circumstances, I find that the view taken by the
learned Magistrate is plausible and, therefore, there is no case made
out for making any interference in the impugned judgment and order.
The appeal deserves to be dismissed.
The appeal stands dismissed.
JUDGE
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