JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard finally by the consent of the parties.

2. The revision arises from Judgments and orders of learned Judicial Magistrate, First Class, Erandol, District Jalgaon in Summary Criminal Case No. 74 of 2014 dated 17.07.2018 and learned Sessions Judge, Jalgaon in Criminal Appeal No. 117 of 2018 dated 02.05.2022.

3. The petitioner was an accused before the trial Court and respondent No.1 was the complainant. They would be referred to as the ‘accused’ and the ‘complainant’.

FACTS IN BRIEF

4. There was no dispute that the complainant and the accused knew each other. The complainant paid the accused a hand loan of Rs.4,00,000/- on November 23, 2010. After the demand at various times, the accused issued a cheque in dispute of Rs.4,00,000/- to the complainant on 7.1.2014 towards the legally enforceable debt. The complainant presented the above cheque to the Bank on 11.01.2014; however, it was dishonoured for want of sufficient funds in the bank account of the accused. The accused was served with a statutory notice dated 06.01.2014.

5. On 01.02.2014, the accused replied to the statutory notice. He came with a defence that the cheque in dispute was issued as a security towards the hand loan. He repaid the hand loan by cheque of Rs.80,000/- and the remaining by cash. Hence, nothing remained to be paid. In the circumstances, there was no legally enforceable debt. The complainant conspicuously did not state the date of the hand loan and the date of issuing the cheque. The alleged demand for a hand loan was time-barred. Hence, no offence is made out under Section 138 of the Negotiable Instrument Act. There was no express acknowledgment of the time-barred loan. However, both the courts erroneously declined the defence and held the accused guilty and convicted for the offence punishable under Section 138 of the Negotiable Instrument Act.

6. The learned counsel for the accused has raised various legal grounds. She vehemently argued that the learned trial Judge erroneously held that since the accused had issued a cheque in favour of the complainant, has made a promise to pay the time-barred debt. The learned trial Court failed to consider that the complainant was conspicuously silent on the date of the alleged cheque issued to the complainant. The complainant did not rebut the probable defence of time-barred debt. After issuing the cheque in dispute, the accused paid Rs.80,000 by cheque. Therefore, without any endorsement on the negotiable instrument about the repayment of Rs.80,000/- the cheque was not negotiable and no offence under section 138 of the N.I. Act is made out. This material aspect has also been ignored. She has also argued that the learned Sessions Judge erroneously held that the defence taken in the reply and one taken in the written notes of arguments are contrary to each other and thus are not the probable defence. The learned subordinate appellate Judge also erroneously held that once the presumption is raised against the accused, he should enter the witness box and depose. Having failed to do so, he failed to rebut the presumption.

7. In short, she argued that a debt claimed to be a legally enforceable debt was barred by limitation. The alleged cheque was delivered as security. Hence, the complainant could not encash it. It was a blank cheque. Since the part payment of Rs. 80,000/- was made, and without any endorsement about the part payment on the negotiable instrument, it was not a legally enforceable debt and no offence is made out. To bolster her argument, she would rely upon the following cases laws:-

(i) Dashrathbhai Trimbakbhai Patel Vs. Hitesh Mahendrabahi Patel and another reported in 2022 SCC Online SC 1376

(ii) Vijay Vs. Laxman and Others reported in (2013) 3 SCC 86 (Criminal Appeal No. 261 of 2013)

(iii) Kamala S. Vs. Vidyadharan M.J. and Others reported in (2007) 5 SCC 264

(iv) Kamalaksha Laxman Prabhu Vs. S.G. Mayekar reported in 2008 DGLS (Cri) Soft 560

(v) Ashwini Satish