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(PANAJI BENCH)
P.V. Hardas, J.
Xavier D'Souza .... Applicant.
Versus
Alfred Caetan Rego, c/o Philomena Rego another .... Respondents.
Criminal Revision Application No. 13 of 2001, decided on 4-10-2001.
Advocates appeared :
M.S. Sonak, for applicant.
E.Dias, for respondent No. 1.
A.P. Lawande, P.P., for respondent No. 2/State.
The enforceability of the debt under section 138 of the Negotiable Instruments Act, 1881 should be determined during trial, not at the stage of recalling process.
Headnote:
Negotiable Instruments Act - Dishonor of Cheque - Section 138 - 1881 - Summary: The court discussed the scope of recalling process, enforceability of debt, and limitations under section 138 of the Negotiable Instruments Act, 1881. The court emphasized the presumption under section 139 of the Act and held that the enforceability of the debt should be determined during trial, not at the stage of recalling process.
Fact of the Case:
The complainant advanced a loan to the accused, who issued a post-dated cheque as security. The cheque was returned unpaid, and the complainant filed a complaint under section 138 of the Negotiable Instruments Act, 1881. The accused sought to withdraw the process, claiming the debt was unenforceable due to limitation.
Finding of the Court:
The court held that the enforceability of the debt should be determined during trial, not at the stage of recalling process. The order recalling process was quashed, and the trial court was directed to decide the complaint case on merits.
Issues: Scope of recalling process, enforceability of debt, and limitations under section 138 of the Negotiable Instruments Act, 1881.
Ratio Decidendi: The court emphasized the presumption under section 139 of the Act and held that the enforceability of the debt should be determined during trial, not at the stage of recalling process.
Final Decision: The revision was allowed, and the order recalling process was quashed. The trial court was directed to decide the complaint case on merits.
2. The case of the applicant herein, as set out in the complaint, was that the applicant/complainant on the request of the respondent/accused had advanced a loan of Rs. 16,00,000/- on 2nd February, 1995. The applicant/complainant further averred that as a security for due re-payment of the said loan the respondent/accused had issued a post dated cheque dated 31st December, 1999, Bearing No. 067572, drawn on the Mapusa Urban Co-operative Bank, Panaji Branch, Panaji, Goa. According to the complaint, the said cheque on presentation was returned back unpaid with a remark "Account Closed". The complainant had then issued a notice, in terms of section 138 of the Negotiable Instruments Act, 1881, to the respondent/accused. The respondent/accused had replied to the said notice raising various defences, including that the complaint being in wrongful possession of the cheque had misused the same. Since, the respondent/complainant did not comply with the notice issued by the applicant/complainant, the complainant filed the aforesaid complaint case before the Judicial Magistrate First Class, Panaji, Goa, for an offence punishable under section 138 of the Negotiable Instruments Act, 1881.
3. The learned Magistrate after recording the statement of the complainant ordered issuance of summons to the respondent/accused. The respondent/accused filed an application for withdrawing of the process issued against him. The principal ground urged in the said application was that assuming the complainant had advanced a loan to the accused, the recovery of the loan having become barred by the law of limitation, was an unenforceable debt and, therefore, prima facie, according to the accused, no offence was disclosed. The learned Magistrate by his order dated 29th January, 2001, rejected the said application filed by the respondent/accused, holding that in view of the presumption under section 139 of the Negotiable Instruments Act, 1881, it could not be said that the cheque had been issued without passing of consideration. The learned Magistrate also held that a transaction was within the prescribed period of limitation.
4. Being aggrieved by the order of the learned Magistrate dated 29th January, 2001, the respondent/accused filed Criminal Revision Application No. 9/2001 in the Court of Sessions Judge, Panaji. The learned Sessions Judge by his judgment dated 11th April, 2001, allowed the Criminal Revision filed by the respondent/accused and quashed the order of the learned Magistrate issuing process against the accused. The learned Sessions Judge, while allowing the revision held that the debt in respect of which the cheque had been issued was not a legally enforceable debt as the right to recover it was barred by the law of limitation. Reliance was placed by the learned Sessions Judge on a judgment of this Court in the matter of (Ashwini Bhat v. Jeevan Lolienkar)1, reported in 2000(5) Bom.C.R. (P.B.)9 and in the matter of (Girdhari Lal Rathi v. P.T.V. Ramanujachari and another)2, reported in 1998 Bank, J. (A.P.)127.
5. Being aggrieved by the judgment of the learned Sessions Judge quashing the order of issuance of process, the applicant/complainant has filed this present revision.
6. I have heard Mr. M.S. Sonak, the learned Advocate appearing for the applicant/complainant, Mr. E. Dias, the learned Advocate appearing for the respondent/accused and Mr. A.P. Lawande, the learned Public Prosecutor appearing for the respondent No. 2/State.
7. The learned Advocate appearing for the applicant has urged before me that when a Court deals with an application for recalling of process, the scope is extremely limited. According to the learned Advocate appeari
