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Judgment
D.G. Deshpande, J.—Heard Mr. Bandivadekar, Advocate for the Appellant and Mr. Mirza A.P.P., for the State. This appeal is filed by the original complainant against the Order of acquittal of the accused-Respondent No. 1 (who is served but absent) by JMFC, IIIrd Court, Nasik by Judgment dated 20.5.1995 for offences u/s 138 of the Negotiable Instruments Act.
Mr. Bandivadekar contended that the learned Trial Court acquitted the accused only on one ground that the cheque was presented by the complainant-appellant after six months and therefore according to the Trial Court, the complaint was time barred. He also contended that the entire evidence of the complainant was on record but since the Magistrate decided the complaint only on the point of limitation, there was nothing to argue regarding appreciation of evidence.
My attention was drawn by Mr. Bandivadekar to para 11 of the Judgment of the Trial Court, wherein the Trial Court has held the cheque was issued by the accused to the complainant on 21.12.1982 and limitation therefore started from 21.12.1982. From para 15 of the Judgment it appears that the Trial Court relied upon the Judgment of Punjab & Haryana High Court in Gulshan Rai v. Anilkumar 1992 7 Crimes 910 . However, Mr. Bandivadekar pointed out that Supreme Court has reversed the Judgment of Punjab & Haryana High Court as per the Judgment of the Supreme Court, (emphasis supplied) in Anil Kumar Sawhney Vs. Gulshan Rai, , and it has been held in the Judgment that in case of post-dated cheques, they shall be deemed to have drawn on the date which is borne out by the cheque and the period of six months will be calculated from the said date of the cheque. This judgment of the Supreme Court shows that the view of the Punjab & Haryana High Court and that of the Madras High Court regarding the interpretation of Section 138 of Negotiable Instruments Act was not accepted by the Supreme Court. It appears that this judgment of the Supreme Court was not brought to the notice of the Trial Court and consequently the trial Court acquitted the accused wrongly relying upon the judgment of Punjab & Haryana High Court.
It appears from the record that it was the defence of the accused that the cheque was issued in 1982. However, in view of the Supreme Court judgment the date of the cheque has to be taken as the date which was put on the cheque by the parties i.e. 8.2.1993 and the period of six months has to be calculated from that date.
Since the Trial Court has decided the complaint only on one aspect i.e. on limitation, the order is required to be set aside and the matter is required to be remanded back for decision according to law. Hence, the order:
ORDER
Appeal is allowed. The impugned judgment of JMFC, IIIrd Court, Nasik dated 20.5.1995 is set aside. Acquittal of the accused is also set aside and the matter is remanded back to the said Court for decision on merits after hearing both the complainant and the accused on the evidence that is already recorded.
Parties to appear before the concerned Magistrate on 2.12.1998.
R & P be sent back immediately to the concerned Court.
Certified copy expedited.