Gujarat High Court
Mohit Hareshbhai Joshi vs Dahyabhai Nagarbhai Makwana on 20 February, 2024
NEUTRAL CITATION
R/CR.MA/2698/2024 ORDER DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2698 of
2024
In R/CRIMINAL APPEAL NO. 422 of 2024
With
R/CRIMINAL APPEAL NO. 422 of 2024
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MOHIT HARESHBHAI JOSHI
Versus
DAHYABHAI NAGARBHAI MAKWANA & ANR.
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Appearance:
ANILKUMAR N MUNDRA(9205) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/02/2024
ORAL ORDER
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2698 of
1. Learned Advocate Mr.Anilkumar Mundra for the applicant
states that, judgment and order of the acquittal was
passed on two grounds, one is that, the notice was issued
on 31st day on intimation from Bank and the second is
that the debt is time barred. With regard to the first
ground, Learned Advocate Mr.Mundra has drawn the
attention of this Court on the observation made by the
Learned Trial Court, wherein it transpires that the cheque
is of dated 04-07-2023 and was returned on 05-07-2023.
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Notice was issued on 04-08-2023 i.e. within a period of
30 days as prescribed under section 138(b) of the
Negotiable Instruments Act, 1886.
2. Learned Advocate Mr.Mundra further submits that so far
as the time barred debt is concerned, the cheque was
issued by the respondent-accused dated 02-07-2022 and
by issuing the said cheque, the respondent-accused had
acknowledged the debt in favor of the complainant.
Learned Advocate Mr.Mundra relies on section 18 of the
Limitation Act, which provides as under:
"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
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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."
3. The learned advocate Mr.Mundra further relies on the
decision rendered by the Hon'ble Apex Court in the case
of S. Natarajan v/s. Sama Dharman and anothe r,
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 a presumption that
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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 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."
4. Learned Advocate Mr.Mundra submits that by issuing the
cheque, respondent has acknowledged the debt,
therefore, the fresh limitation period would start from the
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date when the acknowledgment was given.
5. In view of the above submissions, this Court deems it fit
to allow this application for seeking leave to prefer an
appeal.
6. Hence this application is allowed. Leave to prefer an
appeal is granted.
ORDER IN R/CRIMINAL APPEAL NO. 422 of 2024
1. The appeal is admitted. Learned APP waives service
of notice of admission on behalf of respondent-State.
2. Issue Bailable Warrant in the sum of Rs.5,000/-
(Rupees Five Thousand Only) against the
respondent-original accused.
3. Record and Proceedings shall be called for. Matter
be listed in seriatim.
(M. K. THAKKER,J)
NIVYA A. NAIR
