Gujarat High Court
Jay Mahakali Industries Thro ... vs State Of Gujarat on 27 June, 2024
NEUTRAL CITATION
R/CR.MA/10884/2024 ORDER DATED: 27/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10884
of 2024
In R/CRIMINAL APPEAL NO. 1360 of 2024
With
R/CRIMINAL APPEAL NO. 1360 of 2024
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JAY MAHAKALI INDUSTRIES THRO JAGDISHBHAI RAVJIBHAI RAMANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AMIT P SOLIYA(10780) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR JAY MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 27/06/2024
ORAL ORDER
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10884
of 2024
1. Learned advocate Mr.Soliya submits that learned trial
Court has acquitted the respondent-accused on the
ground that the debt is time barred debt. Learned
advocate Mr.Soliya submits that learned trial Court while
acquitting the respondent-accused has ignored the
evidence which was produced below Exhibit 37 which is
the balance-sheet of the year 2008 to 2022 wherein in
the year 2014 the amount of the cheque is mentioned in
the name of respondent-accused. Learned advocate
Mr.Soliya submits though by way of this balance-sheet
acknowledgment was given, however, the learned trial
Court has observed in the impugned judgment and order
that the debt is of 2012 and the cheque in question was
issued in the year 2017. Learned advocate Mr.Soliya
submits that for discarding this evidence, learned trial
Court has observed that only for carry forwarding the
statement this entry was made.
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2. Learned advocate Mr.Soliya submits that as per Section
18 of the Limitation Act, it is provided that from the date
of the acknowledgment fresh limitation period would start
and even if this is to be considered as a carry-forward
entry then also it cannot be said that in the year 2014 the
acknowledgment was not given. The learned advocate
relies on the provisions of Section 18 of the Limitation
Act, which 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 the property or right,
(b) the word "signed" means signed either
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R/CR.MA/10884/2024 ORDER DATED: 27/06/2024
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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.Soliya further relies on the
decision rendered by the 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 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
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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. The learned advocate Mr.Soliya 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:-
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"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
acknowledgment 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 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 acknowledgment can hardly be
said to cease as an admission/acknowledgment 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
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judgment also merits acceptance."
5. Learned advocate Mr.Soliya submits that by discarding
the evidence, which was produced in support of the
complaint, learned trial Court has dismissed the
complaint and therefore, the application seeking leave to
prefer an appeal is required to be granted.
6. Considering the submissions, this Court deems it fit to
allow this application for seeking leave to prefer an
appeal. Hence, present application is allowed. Leave to
prefer an appeal is granted.
R/CRIMINAL APPEAL NO. 1360 of 2024
1. The appeal is admitted. Learned APP Mr.Mehta
waives service of notice of admission on behalf of the
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.
(M. K. THAKKER,J)
M.M.MIRZA
