Rajesh Devi vs Satbir

Rajesh Devi .......Petitioner Versus

Satbir .....Respondent

CORAM: HON'BLE MR. JUSTICE HARNARESH SINGH GILL

Present: Mr. Manoj Sharma, Advocate, for the petitioner.

Harnaresh Singh Gill, J.

Challenge in the present revision petition is to the

judgment dated 9.2.2018 passed by the learned Additional

Sessions Judge, Rohtak, whereby while setting aside the

judgment of conviction and order of sentence dated 27.01.2016

passed by the learned Judicial Magistrate, Ist Class, Rohtak, the

respondent was acquitted of the charge framed against him.

A complaint under Section 138 of the Negotiable

Instruments Act, 1881 (for short `the Act'), was filed by the

petitioner-complainant with the averments that the respondent

had purchased a Trailer bearing Registration No. HR-46B-5726

from the complainant on 24.05.2006 and that in this regard an

agreement of the even date was also executed between the

parties. As per the said agreement, the respondent had

undertaken to pay the outstanding instalments of the vehicle

purchased by him from the complainant. The complainant had

purchased the said vehicle by availing of a loan from the

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IndusInd Bank. However, in contravention of the agreement

dated 24.05.2006 entered between the parties, the respondent

did not pay the instalments of the loan and the complainant had

got cleared the said loan through her guarantor Sh. Ram Bhaj

by way of a full and final settlement with the Bank in the year

2011. The respondent against the said liability, on 30.06.2013

issued a cheque for an amount of Rs.10,75,000/- drawn on the

Central Bank of Sanjarwas (Bhiwani), but when presented for

encashment, the said cheque got dishonoured.

On the basis of the evidence led by the parties and after

considering the rival contentions, the learned trial Court found

the respondent guilty for the offence under Section 138 of the

Act and he was accordingly sentenced to undergo simple

imprisonment for six months and also to pay 50% of the cheque

amount by way of compensation to the complainant and, in

default thereof, to further undergo simple imprisonment for two

months.

However, in the appeal filed by the respondent against the

judgment and order passed by the trial Court, the learned

Additional Sessions Judge, Rohtak, set aside the findings

recorded by the trial Court and acquitted the respondent of the

charge framed against him.

The learned trial Court had recorded the finding of guilt by

holding that once the cheque was in possession of the

complainant and the signatures thereon were never disputed by

the respondent, there was a presumption of the legal liability

against the respondent. However, the learned appellate Court,

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while scrutinizing the evidence on record, set aside the said

finding and arrived at a conclusion that admittedly, the amount

of loan was paid by the guarantor of the complainant i.e. Sh.

Ram Bhaj pursuant to the Arbitral Award dated 28.7.2009

(Ex.CW3/B). It was further found that as per the case of the

complainant, the respondent had defaulted in making payment

of the instalments of the loan in the year 2006 itself. Thus, non

initiation of any kind of proceeding(s) by the complainant against

the respondent till the filing of the complaint, created a doubt

about the credibility of the claim of the complainant. It was

further found that issuance of a cheque in the year 2013 in

respect of the alleged liability arose in the year 2006, would not,

in any way, term the said liability as a legally recoverable debt.

The relevant extracts from the findings recorded by the learned

appellate Court would read as under:-

"13. There is another aspect of this matter. This court had

examined Jai Parkash, Senior Manager, Central Bank of India,

Branch Sanjarwas, Charkhi Dadri as Court Witness No.1. He

had brought the records pertaining to the Old Account No.

4705 of the appellant from which the cheque Ex.C.1 had been

issued. As per his deposition, this account has never been

operated by the appellant. He produced the attested copy of the

entry regarding issuance of cheque book as, Ex. P.1. As per

this record only a single cheque book was issued to this

account. The same was issued on 20.05.2006. No other cheque

book had ever been issued qua this account. Though the

account had never been closed, it was inoperative. The

statement of account produced by this witness commenced

from 01.02.2010 to 30.01.2018 and the account had been

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inoperative for this entire period and even prior thereto but the

previous record had not been produced. It is obvious that when

the cheque, Ex.C.1, was issued on 30.06.2013, the account

had been inoperative for a minimum period of 3 years as per

the testimony of the court witness No.1-Jai Parkash and the

statement of account Ex.P.2.

This fact also lends further credence to the version of

the appellant that the respondent may have forcibly obtained

blank signed cheques of the complainant which he has

subsequently misused. The onus was heavily upon the

complainant to show how this cheque came into his possession

and whey no action was taken by him against the appellant in

the very first instance when the appellant allegedly defaulted in

making the payment of instalments on behalf of the

respondent-complainant to the IndusInd Bank. She has

absolutely failed to discharge this onus.

The totality of the facts and circumstances on record

clearly indicate that there was no legally recoverable debt

against the appellant. The cheque return memo Ex.CW2/B is

dated 09.07.2011 and even from that date the instant

complaint has been lodged beyond the period of limitation. In

these circumstances, it is evident that the learned trial Court

certainly erred in convicting the appellant by holding him

guilty for dishonour of a cheque in discharge of a legal liability,

whereas in fact no such liability existed against him."

Even if it is taken that the respondent had, vide agreement

dated 24.05.2006, agreed to make the payment of the

instalments of the loan, then also the cheque issued by the

respondent on 30.06.2013 would not make the same as legally

recoverable debt, particularly when such debt becomes time

barred. There is no acknowledgement on behalf of the

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respondent from the period 2006 till 2013 regarding the

payment of the alleged debt.

Similar issue was considered by this Court in Manjit Kaur

Vs. Vanita, 2010(3) RCR (Criminal) 574. In the said case, a

cheque issued in the year 2003 in respect of the loan advanced

in 1999, was held not be legally enforceable. It was held as

under:-

"9. Adverting to the facts of the instant case, the cheque was issued on 28.6.2003. On reckoning, it works out that the loan was advanced somewhere in June, 1999. A meticulous perusal of the evidence on record would reveal that the appellant has not produced any document or other evidence revealing that the accused- respondent had acknowledged the debt within three years from the date of loan. Thus, by the time, the cheque was issued, the debt became barred by limitation because no acknowledgment was obtained before the expiry of three years from the date of loan. Section 18 of the Limitation Act, 1963 deals with the theory underlying the doctrine of acknowledgment. The true principle underlying an acknowledgment is that it merely renews the liability and gives the creditor or claimant a fresh period of limitation according to the nature of the liability which exists at the time of the acknowledgment. An acknowledgment cannot be regarded as evidentiary of the debt but an acknowledgment that a person owes money to another, a specified person is good evidence of his owing money to another. The dishonoured cheque Ex.P1 cannot be treated as acknowledgment under Section 18 of the Limitation Act, since the acknowledgment should be before the period of limitation is over and that it should be in writing. Thus, it cannot be said that the appellant has been able to prove that Ex. P1 was in relation to a legally enforceable debt or liability in law as the same was admittedly issued after more than three years of the advancement of the alleged amount as loan. So, if the matter is viewed in the background of the observations

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rendered in re: Ashwani Satish Bhat (Mrs.) (supra), it turns out that the accused-respondent had issued the cheque in 2003 when the debt had already become time barred. The acknowledgment of the alleged amount in 2003 was not valid acknowledgment under Section 18 of the Limitation Act and consequently, it was not a legally enforceable debt."

In view of the above, I do not find any patent illegality or

perversity in the impugned judgment passed by the learned

appellate Court. Hence, the revision petition, being bereft of any

merit, is hereby dismissed.

(HARNARESH SINGH GILL) JUDGE 20.01.2020 ds

Whether Speaking/ Reasoned: Yes/ No Whether Reportable: Yes/ No

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