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Judgment
The appellant, who is the complainant in Summary Criminal Case 833/2007 instituted under section 138 of the Negotiable Instruments Act, 1881 ("Act" for short), is aggrieved by the judgment of acquittal dated 16.04.2012 passed by the learned Judicial Magistrate First Class, Katol.
Heard Shri J.D. Bastian, the learned Counsel for the appellant. None appears for the accused/respondent 1. Shri V.P.
Gangane, the learned Additional Public Prosecutor appears for the respondent 2/State.
The judgment of acquittal is substantially predicated on the assumption that the debt or liability towards the discharge of which the disputed cheque was issued, is time barred.
The provisions of the Maharashtra Co-operative Societies Act, 1960 providing for limitation of six years is referred to in the judgment. The other reason given by the learned Magistrate for dismissal of the complaint is that the statutory notice dated 08.11.2007 issued to the accused is not proved. The statutory notice is marked article "A" on the record of the trial court.
Shri Bastian, the learned counsel for the appellant invites my attention to the Division Bench judgment of this court in Mr. Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt & Anr. reported in
2012 ALL MR (Cri) 3656 and in particular to paragraph 15 which reads thus:
On plain reading of Section 13 of the said Act of 1881, a negotiable instrument does contain a promise to pay the amount mentioned therein. The promise is given by the drawer. Under Section 6 of the said Act of 1881, a cheque is a bill of exchange drawn on a specified banker. The drawer of a cheque promises to the person in whose name the cheque is drawn or to whom the cheque is endorsed, that the cheque on its presentation, would yield the amount specified therein. Hence, it will have to be held that a cheque is a promise within the meaning of Sub-section (3) of Section 25 of the Contract Act. What follows is that when a cheque is drawn to pay wholly or in part, a debt which is not enforceable only by reason of bar of limitation, the cheque amounts to a promise governed by the Sub-section (3) of Section 25 of the Contract Act. Such promise which is an agreement becomes exception to the general rule that an agreement without consideration is void. Though on the date of making such promise by issuing a cheque, the debt which is promised to be paid may be already time barred, in view of Sub-section (3) of Section 25 of the Contract Act, the promise/agreement is valid and, therefore, the same is enforceable. The promise to pay time barred debt becomes a valid contract as held by the Apex Court in the case of A.V. Moorthy (supra). Therefore, the first question will have to be answered in the affirmative.
In view of the Division Bench judgment of this court, the first reason given by the learned Magistrate for acquitting the accused must fall to the ground.
Perusal of the judgment and order impugned would reveal that the learned Magistrate, perhaps labouring under the erroneous assumption that the cheque concededly was issued to discharge a time barred debt, has not addressed in detail the other issues arising for adjudication.
In the facts of the case, I find considerable substance in the submission of the learned counsel for the appellant Shri Bastian that the proceedings be remitted to the learned Magistrate for fresh adjudication in accordance with law.
The judgment and order impugned is set aside.
The proceedings are remitted to the learned Magistrate to decide the issues arising, afresh, in accordance with law and if the complainant or the accused so desire, after giving
opportunity to the complainant or the accused to adduce further evidence.
The learned Magistrate is requested to decide the complaint afresh within six months from the receipt of the record and proceedings.
The appeal is partly allowed in the above terms.