Bombay High Court
Pragati Credit Co-Operative ... vs Sheikh Mahboob S/O Sheikh Hafiz ... on 16 January, 2018
Bench: R. B. Deo
apeal465.12.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.465 O
F 2012
Pragati Credit Co-operative Society Ltd.,
Katol through its Authorised Signatory
and Power of Attorney Shri Pramod
Annaji Nasare, Aged about 37 years,
Occu: Service, R/o Katol,
Dist. Nagpur. ....... APPELLANT
...V E R S U S...
1] Sheikh Mahboob s/o Sheikh Hafiz,
Aged about 38 years,
Occu: Business, R/o Near School No.4,
Falli Market, R/o Katol, Dist. Nagpur.
2] State of Maharashtra through
Police Station Officer,
Katol P.S., Katol, Dist. Nagpur. ....... RESPONDENT S
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Shri J.D. Bastian, Advocate holding for Shri M.B. Naidu,
Advocate for Appellant.
None for Respondent 1.
Shri V.P. Gangane, APP for Respondent 2/State.
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CORAM: ROHIT B. DEO , J.
DATE: th
16 JANUARY
8 .
ORAL JUDGMENT
1] The appellant, who is the complainant in Summary
Criminal Case 833/2007 instituted under section 138 of the
Negotiable Instruments Act, 1881 ("Act" for short), is aggrieved by
the judgment of acquittal dated 16.04.2012 passed by the learned
Judicial Magistrate First Class, Katol.
2] Heard Shri J.D. Bastian, the learned Counsel for the
appellant. None appears for the accused/respondent 1. Shri V.P.
Gangane, the learned Additional Public Prosecutor appears for the
respondent 2/State.
3] The judgment of acquittal is substantially predicated
on the assumption that the debt or liability towards the discharge
of which the disputed cheque was issued, is time barred.
The provisions of the Maharashtra Co-operative Societies Act,
1960 providing for limitation of six years is referred to in the
judgment. The other reason given by the learned Magistrate for
dismissal of the complaint is that the statutory notice dated
08.11.2007 issued to the accused is not proved. The statutory
notice is marked article 'A' on the record of the trial court.
4] Shri Bastian, the learned counsel for the appellant
invites my attention to the Division Bench judgment of this court
in Mr. Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt & Anr. reported in
2012 ALL MR (Cri) 3656 and in particular to paragraph 15 which
reads thus:
15. On plain reading of Section 13 of the said
Act of 1881, a negotiable instrument does contain a
promise to pay the amount mentioned therein.
The promise is given by the drawer. Under Section 6 of
the said Act of 1881, a cheque is a bill of exchange
drawn on a specified banker. The drawer of a cheque
promises to the person in whose name the cheque is
drawn or to whom the cheque is endorsed, that the
cheque on its presentation, would yield the amount
specified therein. Hence, it will have to be held that a
cheque is a promise within the meaning of Sub-section
(3) of Section 25 of the Contract Act. What follows is
that when a cheque is drawn to pay wholly or in part, a
debt which is not enforceable only by reason of bar of
limitation, the cheque amounts to a promise governed
by the Sub-section (3) of Section 25 of the Contract Act.
Such promise which is an agreement becomes exception
to the general rule that an agreement without
consideration is void. Though on the date of making
such promise by issuing a cheque, the debt which is
promised to be paid may be already time barred, in
view of Sub-section (3) of Section 25 of the Contract
Act, the promise/agreement is valid and, therefore, the
same is enforceable. The promise to pay time barred
debt becomes a valid contract as held by the Apex Court
in the case of A.V. Moorthy (supra). Therefore, the first
question will have to be answered in the affirmative.
5] In view of the Division Bench judgment of this court,
the first reason given by the learned Magistrate for acquitting the
accused must fall to the ground.
6] Perusal of the judgment and order impugned would
reveal that the learned Magistrate, perhaps labouring under the
erroneous assumption that the cheque concededly was issued to
discharge a time barred debt, has not addressed in detail the other
issues arising for adjudication.
7] In the facts of the case, I find considerable substance
in the submission of the learned counsel for the appellant
Shri Bastian that the proceedings be remitted to the learned
Magistrate for fresh adjudication in accordance with law.
8] The judgment and order impugned is set aside.
9] The proceedings are remitted to the learned
Magistrate to decide the issues arising, afresh, in accordance with
law and if the complainant or the accused so desire, after giving
opportunity to the complainant or the accused to adduce further
evidence.
10] The learned Magistrate is requested to decide the
complaint afresh within six months from the receipt of the record
and proceedings.
11] The appeal is partly allowed in the above terms.
JUDGE
NSN
