JUDGMENT

Manish Pitale, J. (Oral) - These are the two appeals filed by the original complainant against the respondent no.1 alleging that the respondent no.1 was liable to be punished for having committed an offence under section 138 of the Negotiable Instruments Act, 1881. Since there were two cheques involved in the present cases, there were two complaints filed by the appellant resulting in two appeals before this Court. The Court of Judicial Magistrate First Class, Special Court, Nagpur acquitted the respondent no.1 by its judgments dated 06.07.2006 in Summary Criminal Case Nos.1788 of 2004 and 1789 of 2004, which are subject matter of the present two appeals.

2. In brief, the facts leading to the filing of these two appeals are that the appellant (original complainant) had given a hand loan of Rs. 80,000/to the respondent no.1 for a period of ninety days for business purpose. It was the case of the appellant that the respondent no.1 failed to repay the aforesaid loan amount and that the appellant pursued the matter with the respondent no.1 for a considerable period of time. According to the appellant, in order to repay the aforesaid loan, on 04.06.2003, the respondent no.1 issued a cheque for an amount of Rs. 30,000/in favour of the appellant and thereafter on 01.09.2004, the respondent no.1 issued another cheque for an amount of Rs. 50,000/in favour of the appellant.

3. But, when the said cheques were deposited by the appellant, they were dishonoured. The appellant issued notice to the respondent no.1 in respect of dishonour of the said cheques and thereafter, he was constrained to file criminal complaints against the respondent no.1 for having committed an offence under section 138 of the Negotiable Instruments Act, 1881.

4. The respondent no.1 claimed before the Court that he had repaid the said amount of loan and that the cheques in question had been handed over to the appellant by way of security. On this basis, it was contended that the cheques did not pertain to any legally enforceable debt or liability and therefore, the respondent no.1 could not be held guilty under Section 138 of the aforesaid Act.

5. By the impugned judgments and orders dated 06.07.2006, the trial Court has found that there was no material on record to show that the respondent no.1 had repaid the loan amount to the appellant. But, the trial Court acquitted the respondent no.1 in both the cases essentially on the ground that even if the claim of the appellant regarding advancement of hand loan to the respondent no.1 was accepted, the loan was given in the year 1999 and by the time the cheques in question were issued, the recovery of the said amount from the respondent no.1 had become barred by limitation and that therefore, the cheques issued by the respondent no.1 could not be said to be in discharge of legally enforceable debt. Consequently, the respondent no.1 could not be held to have committed an offence punishable under Section 138 of the said Act.

6. Mr. S.M. Mishrikotkar, learned counsel appearing on behalf of the appellant submits that the view taken by the trial Court was unsustainable because even if period of more than three years had elapsed from the time when the loan was advanced by the appellant to the respondent no.1, once it was found that the cheques were indeed issued by the respondent no.1, the presumption under Section 118 read with Section 139 of the said Act operated in favour of the appellant and it had to be presumed that the cheque had been issued in discharge of legal debt or liability. It was further contended that the moment the respondent no.1 signed the cheques in question on 04.06.2003 and 01.09.2004, he acknowledged his liability and therefore, upon dishonour of the said cheques, he was liable to be convicted and punished under section 138 of the Negotiable Instruments Act, 1881.

7. In support of his contention, the learned counsel relied upon the Division Bench judgment of this Court in the case of Dinesh B. Cho