Gujarat High Court

Pankajbhai Dahyabhai Machhi vs State Of Gujarat on 8 February, 2024

                                                                                 NEUTRAL CITATION




     R/CR.MA/2502/2024                             ORDER DATED: 08/02/2024

                                                                                  undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2502 of
                              2024
              In R/CRIMINAL APPEAL NO. 314 of 2024
                              With
                R/CRIMINAL APPEAL NO. 314 of 2024
==========================================================
                         PANKAJBHAI DAHYABHAI MACHHI
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR ROHAN G VAGHELA(12034) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
==========================================================

CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 08/02/2024

                                 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, passed by

the learned 8th Additional Sessions Judge, Vadodara dated

20.09.2023 in Criminal Appeal No.153 of 2022.

2. Heard the learned advocate appearing for the applicant -

original complainant and perused the impugned judgment and

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

order of the trial Court.

3. Learned advocate Mr.Rohan Vaghela submits that though

all the documents were produced and proved through the

examination of the complainant, the learned trial Court did not

believe the same on the ground that in the examination-in-

chief, the documents which were placed on record, were not

proved. The learned advocate has drawn the attention of this

Court with regard to exh.8 - examination-in-chief wherein, it

transpires that the kabulatnama was produced below exh.9.

The cheque below exh.14, return memo below exh.15, notice

below exh.16 and reply to the notice below exh.17. The

learned advocate submits that after considering the material

and the arguments, the learned trial Court had passed the

judgment and order of conviction which was challenged before

the learned appellate Court. The learned appellate Court has

reversed the judgment of conviction on two grounds. One is

that the documents were not proved and another is that the

debt is time barred debt. The learned advocate submits that

though, in the examination-in-chief, the complainant had

deposed before the Court that to discharge the debt, the

kabulatnama was executed on 15.02.2014 and the cheque was

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

issued on 24.04.2017, by issuing the cheque and executing the

kabulatnama, acknowledgment was given by the respondent -

accused with regard to the debt. The learned advocate relies

on Section 18 of the Limitation Act, which is 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

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

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 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

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

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 upholding the Sessions Court's order quashing the entire proceedings on the ground that the debt or

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

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

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

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 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. At the end, the learned advocate submits that without

any cogent reasons, the judgment and order of the learned

trial Court was reversed by the learned appellate Court and,

therefore, interference is required.

7. Considering the avernments made in the application and

submissions made by the learned advocates appearing for the

respective parties, this Court finds that there is some arguable

NEUTRAL CITATION

R/CR.MA/2502/2024 ORDER DATED: 08/02/2024

undefined

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 APP waives service of

notice of admission for the respondent - State. Learned

advocate Mr.Jarjeeskhan Pathan waives service of notice of

admission for the respondent - accused.