Gujarat High Court

Majahirbhai Mohsinbhai Rokadiya vs State Of Gujarat on 13 February, 2024

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     R/CR.MA/9777/2023                           ORDER DATED: 13/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 9777 of
                             2023
             In R/CRIMINAL APPEAL NO. 1279 of 2023
                             With
               R/CRIMINAL APPEAL NO. 1279 of 2023
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                     MAJAHIRBHAI MOHSINBHAI ROKADIYA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS SHWETA S LODHA(10592) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                             Date : 13/02/2024

                              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 2nd Additional Chief Judicial Magistrate, Godhra,

Panchmahals dated 11.04.2023 in Criminal Case No.1010 of

2020.

2. Heard learned advocate appearing for the applicant -

original complainant and perused the impugned judgment and

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order of the trial Court.

3. Learned advocate Ms.Shweta Lodha submits that the

judgment and order of acquittal was passed by the learned

trial Court on the sole ground of time barred debt. The learned

advocate submits that the learned trial Court comes to the

conclusion that for the debt of year 2014-2015, cheque dated

13.08.2020 was issued which amounts to time barred debt.

The learned advocate submits that though during the cross-

examination, suggestion made with regard to filling up the

date by the complainant was denied, the learned trial Court

has drawn the inference that as there is a different ink in the

cheque, the column of date has been filled up by the

complainant. The learned advocate submits that this

suggestion was denied by the complainant in the cross-

examination and issuance of the cheque as well as the

signature on the cheque was not denied by the respondent -

accused and though, the onus is on the accused to rebut the

presumption which is in favour of the complainant, the accused

failed to dislodge the same and the judgment and order of

acquittal is passed. The learned advocate submits that by

issuing the cheque in the year 2020, the acknowledgment was

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given by the respondent - accused with regard to the debt

and, therefore, fresh limitation period would start from the

date of acknowledgment i.e. the date of cheque, therefore, the

period of limitation would not come in the way while deciding

the complaint on its own merits.

4. 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,

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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."

5. The learned advocate 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,

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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

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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 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."

6. 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

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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 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."

7. At the end, the learned advocate submits that though the

fresh acknowledgment was given in the year 2020, the

judgment and order of acquittal was passed by the learned

trial Court only on the ground of time barred debt.

8. Considering the avernments made in the application and

submissions made by the learned advocates appearing for the

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respective parties, 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.