Gujarat High Court
M/S Radhekrishna Enterprise vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17963 of 2024
==========================================================
M/S RADHEKRISHNA ENTERPRISE & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR B T BRAHMBHATT(5789) for the Applicant(s) No. 1,2,3,4
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/01/2025
ORAL ORDER
1. The present application is filed for the following
prayers:
"1) To kindly admit and register the Petition and to
kindly issue process to other side Respondents.
2) To kindly grant us ad interim stay over the
proceedings of the learned trial court at Morbi in
Criminal case No.2234/2023 in order to avoid abuse to the
law and justice.
3) To kindly quash and set aside the present criminal
case No.2234/2023 pending with the Learned Addl. Sr.
civil judge and Chief Judicial Magistrate court- Morbi as
filed against the Accused No. 1 to 4 on the grounds and
facts mentioned under the Petition on merits.
4) To kindly pass an appropriate order as think fit by
the Hon'ble court in the interest of law and justice."
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
2. Heard learned advocate Mr. B.T.Brahmbhatt for the
applicants and learned APP, Mr. Pranav Dhagat for the
respondent - State.
3. Learned advocate Mr. Brahmbhatt for the applicants has
submitted that the respondent No.2 has lent amount of Rs.45
Lakh to the applicants for their business needs through
R.T.G.S. on 22.08.2017 and in-turn the applicants issued
cheque No.000055 drawn at Kotak Mahindra Bank Limited
dated 21.01.2023 for amount of Rs.9,82,500/- and the same
was returned unpaid on 23.01.2023 with remarks "Fund
Insufficient" as per the cheque return memo of HDFC Bank,
Morbi Branch and the complaint was filed against the
applicants before the trial Court during March, 2023.
Therefore, he has submitted that considering the provisions of
Article 118 of the Limitation Act, no recovery of dues can be
made after a period of three years and therefore, he has
submitted that the amount was lent on 22.08.2017 and the
complaint was filed in March, 2023, after a period of five
years and six months and therefore, the complaint is not
tenable. He has further submitted that considering the
provisions of Sections 25(3) of the Indian Contract Act, 1872
as well as Sections 18 and 19 of the Limitation Act, 1963,
the present application may be considered accordingly and
therefore, he further submits, that the present complaint filed
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
by the complainant is time barred and the same is required
to be dismissed. Therefore, he submits that, the complaint
itself is time barred and no further process can be issued by
the concerned Court and therefore, the proceedings initiated
by way of Criminal Case No.2234 of 2023 is required to be
quashed and set aside, as prayed for in the present petition.
4. Learned APP, Mr. Dhagat has submitted that essentially
the dispute is between two private parties, however, he
submits that, the trial Court after considering the pros and
cons of the matter, by way of detailed order dated 24.03.2023
process was issued and therefore, any grievance which is now
sought to be agitated by way of defence can be considered at
the time of trial and on such disputed question, this Court
may not exercise its jurisdiction under Section 482 of the
Criminal Procedure Code and therefore, he prays for
dismissal of the present petition.
5. I have considered the rival submissions made at the
bar, I have also considered the provisions of Section 138 read
with Section 142 of the Negotiable Instruments Act, 1881
(N.I.Act.). I have also perused the averments made in the
application, the affidavit of verification as well as the order
passed below Exh.1 by the learned trial Court on 24.03.2023.
The learned trial Court has taken into consideration the
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
judgment of the Hon'ble Apex Court in case of Indian Bank
Association Vs. Union of India reported in AIR 2014 SC
2528, reference was also made to the case of M/s. Meters
and Instruments Vs. Kanchan Mehta reported in AIR 2017
SC 4594 as well as the direction given in Suo-Moto Writ
Petition (CRL) No.2/2020 and passed the necessary order. The
order dated 24.03.2023 passed by the learned trial Court
below Exh.1, reads as under:
"This was allotted to this Court for proceedings according to
law. Preferred the complaint with documents. This complaint is
filed under sec.138 of Negotiable Instrument Act-1881. As per
the direction of the Hon'ble Supreme Court of India in the case
of Indian Bank Association Vs. Union of India reported as AIR
2014 SC 2528, present complaint came to be filed by the
complainant along-with examination-in- chief as well as all
original documents on which complainant relles.
Furthermore, the Hon'ble Supreme Court of India directed to
Sue-Moto Writ Petition (CRL) No.2/2020 that, inquiry shall be
conducted when such accused resides beyond the territorial
jurisdiction of the court. Perusal the complaint, it appears that,
accused resides beyond the territorial jurisdiction of this court.
On perusal of complaint as well as examination-in-chief this
Court found that, complainant deposited said cheque with his
bank account, which is maintain with at Morbi and said Cheque
dishonored. Hence, as per section 138 (b) of the Act, notice
issued by the complainant to accused but accused failed to make
payment of cheque amount. Hence, this court has jurisdiction to
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
try this case as per section-142 (2) (a) of the N.) Act.
Perused the entire record of the present complaint. Considering
the facts of the present complaint, examination of chief of the
complainant u/s 145 of N.L.Act and documentary evidence
produced on record, there appears sufficient reasons to issue
summons against the accused for the offence u/s 138 of N.1.Act.
Therefore, present complaint is hereby order to be registered as
criminal case and summons to be issued as per format specified
in M/s. Meters and Instruments Vs. Kanchan Mehta reported
AIR 2017 SC 4594 & SAXCHINSINGH RAKESHSINGH
CHAUHAN VS. TRIBHUVAN BHAI BHAILAL VASAVA in
Criminal Appeal No.30 of 2018, against the accused u/s 204 of
Cr.P.C. for and offence u/s 138 of N.I. Act returnable on dt.
08/05/2023
Complainant will be also at his liberty to serve the summons on
the accused persons through registered post as well as e-mail.
(see. Direction no.2 of Indian Bank Association (Supra))"
5.1 Now, considering the facts of the present case, there is
no dispute about the fact that the amount of loan was taken
in the year 2017 but on the reading of the complaint, it
transpires that, there was business transaction which wsa
going on and the accused as well as the complainant had
some business relation. Therefore, the fact that Rs.45 Lakh
was lent in the year 2017 and the limitation is expiring in
the year 2020, is not sufficient to infer at this stage.
Moreover, the cause of action for the filing complaint under
the provisions of Section 138 of the N.I. Act could have been
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
arisen after deposit of the cheque and thereafter, dishonour
of such cheque in the account of the complainant. Therefore,
in the present case, the cheque is dishonoured by memo of
the bank dated 23.01.2023 by showing endorsement of "Funds
Insufficient", thereafter, the notice is also sent to the accused
on 16.02.2023 under the provisions of the Section 138 of the
N.I.Act and the accused had received notice at address No.1
on 17.02.2023 and has refused the notice at address No.2 on
18.02.2023. Thereafter, it transpires that the complaint is
filed, whereby, the verification is carried out on 21.03.2023.
Therefore, it also transpires that the complaint is filed within
the prescribed period of limitation, as required under the
provisions of Section 138 of the N.I.Act. Now, the defence is
sought to be taken on the basis of Sections 18 and 19 of the
Limitation Act coupled with Section 25(3) of the Indian
Contract Act. The aforesaid Sections are re-produced herein-
below, for reference:
"Sections 18 and 19 in The Limitation Act, 1963:
18. Effect of acknowledgment in writing.--
(1) Where, before the expiration of the prescribed period
for a suit of 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
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
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 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.
19. Effect of payment on account of debt or of interest on
legacy.--
Where payment on account of a debt or of interest on a
legacy is made before the expiration of the prescribed period
by the person liable to pay the debt or legacy or by his agent
duly authorised in this behalf, a fresh period of limitation
shall be computed from the time when the payment was
made:
Provided that, save in the case of payment of interest made
before the 1st day of January, 1928, an acknowledgment of
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
the payment appears in the handwriting of, or in a writing
signed by, the person making the payment.
Explanation.--
For the purposes of this section,--
(a) where mortgaged land is in the possession of the
mortgagee, the receipt of the rent or produce of such land
shall be deemed to be a payment;
(b) "debt" does not include money payable under a decree or
order of a court.
Section 25(3) in The Indian Contract Act, 1872:
25. Agreement without consideration, void, unless it is in
writing and registered or is a promise to compensate for
something done or is a promise to pay a debt barred by
limitation law.--
An agreement made without consideration is void, unless--
(1) xxx xx xx
(2) xxx xx xx
(3) It is 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.
In any of these cases, such an agreement is a contract.
Explanation 1.--
Nothing in this section shall affect the validity, as between
the donor and donee, of any gift actually made.
Explanation 2.--
An Agreement to which the consent of the promisor is freely
given is not void merely because the consideration is
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
inadequate; but the inadequacy of the consideration may be
taken into account by the Court in determining the question
whether the consent of the promisor was freely given.
Illustrations
(a) A promises, for no consideration, to give to B Rs. 1,000.
This is a void agreement.
(b) A, for natural love and affection, promises to give his son,
B, Rs. 1,000. A puts his promise to B into writing and
registers it. This is a contract.
(c) A finds B's purse and gives it to him. B promises to give
A Rs. 50. This is a contract.
(d) A supports B's infant son. B promises to pay A's expenses
in so doing. This is a contract.
(e) A owes B Rs. 1,000, but the debt is barred by the
Limitation Act. A signs a written promise to pay B Rs. 500
on account of the debt. This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A's
consent to the agreement was freely given. The agreement is
a contract notwithstanding the inadequacy of the consideration.
(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A
denies that his consent to the agreement was freely given.
The inadequacy of the consideration is a fact which the Court
should take into account in considering whether or not A's
consent was freely given."
5.2 The contention that the complaint is filed under Section
138 of the N.I.Act is time barred dues, the same prima facie
seems attractive but not required to be accepted, for the
reason that the present application is filed for quashing of
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
the complaint. Technically, no prayer is sought in the prayer
clause by challenging the order of issuance of process, which
is passed below Exh.1 on 24.03.2023. Therefore, in absence of
challenge of that process also, the present application is not
maintainable.
5.3 Moreover, the contention raised in the present
application with regard to the bar of limitation is not
required to be considered in detail as that may cause
prejudice to the right of the present applicants during the
course of trial for contesting the proceedings on merits.
However, at this stage it cannot be said that in absence of
any other material and without giving opportunity to the
parties to lead the evidence and to establish their respective
case before the concerned trial Court, the contention with
regard to the limitation cannot be accepted, more particularly,
considering the fact that there is continuous business
relationship between the parties from the year 2017 till 2023.
5.4 Therefore, on bare reading of the complaint, it cannot
be said that the complaint is not maintainable in eye of law.
It is always open for the applicant to raise all their defence
available under the law at the time of trial and the Court
after considering the case of the respective parties, shall
decide such issue including the aspect that such complaint
NEUTRAL CITATION
R/CR.MA/17963/2024 ORDER DATED: 03/01/2025
undefined
could be filed after period of limitation, as alleged by the
present applicants.
5.5 It is also not the case of the applicants herein that the
Court has repeatedly asked the counsel for the applicants
that he has paid the entire amount and thereafter, the
complainant is again asking for the recovery of the amount.
On the contrary, the applicants have admitted in the
pleadings that the complainant has lent amount of Rs.45
Lakh in the year 2017 and therefore, it is very premature to
say at this stage that there is no legitimate dues existing,
even, on the ground of bar of limitation. The issue of
limitation can be considered at the time of trial, after giving
opportunity to the respective parties.
6. For the foregoing reasons, this Court finds no reason to
interfere in the present matter, at this stage. Therefore, the
present application lacks merit and the same is required to
be dismissed.
7. Accordingly, the present application is dismissed in
limine.
(SANDEEP N. BHATT,J)
*S. BAROT *
