The court found that the Trial Court misapprehended the limitation issue regarding the debt, which was within the legally enforceable period, warranting the granting of leave to appeal.

ORDER :

(S. V. PINTO, J.)

1. The present application is filed by the applicant – original complainant under Section 419(4) of Bharatiya Nagarik Surakhsha Sanhita, 2023 seeking leave to file an appeal against the judgement and order dated 05.10.2024 passed by the learned Additional Judicial Magistrate First Class, Surendranagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1961/2018, whereby, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to “the NI Act” for short).

2. Learned advocate Mr. Amit Joshi for the applicant submits that the applicant – Gujarat State Cooperative Agriculture and Rural Development Bank Ltd., Surendranagar has given a loan to the respondent no. 2 on 01.11.2011 for Rs. 2 lakhs and all the necessary documents were executed by the respondent no. 2. The duration of the loan was for a period of nine years and as the installments were not paid regularly, an amount of Rs. 4,08,714/- was due towards which cheque no. 167576 dated 20.07.2018 was issued from the account of the respondent no. 2 with the Surendranagar District Cooperative Bank Ltd., Sayla Branch. The cheque was deposited by the applicant and the same returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given which was duly served but the respondent no. 2 did not pay the amount and did not given any reply to the notice. The complaint under Section 138 of the NI Act was filed before the Chief Judicial Magistrate, Surendranagar and after the evidence of the applicant was taken, the learned Trial Court was pleased to dismiss the complaint and acquitted the respondent no. 2 mainly on the ground that the debt was barred by limitation. Learned advocate submits that all the necessary documents including the loan application form, the mortgage deed, hypothecation undertaking and other documents were produced and the loan that was taken on 01.11.2011 was to be paid within a period of nine years. That the duration of the loan was till the year 2020 and the learned Trial Court has misappreciated the issue of limitation and even though the legally enforceable due was within limitation, the learned Trial Court has considered the same. Learned advocate submits that the applicant has a good case on merits and the leave to appeal may be granted.

3. Learned APP Ms. Dhwani Tripathi for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence, the leave to appeal may not be granted.

4. Considering the submission of learned advocate for the applicant and the impugned judgement and order, prima facie, it appears that the applicant has produced all the necessary documents including the loan application form and the other documents executed by the respondent no. 2 and as per the say of the learned advocate for the applicant, the loan was taken on 01.11.2011 but the duration of the loan was for a period of nine years. Learned Trial Court has not appreciated the documents in proper perspective and the submission of the learned advocate deserves consideration.

5. In the peculiar facts and circumstances of the case in the considered opinion of this Court the application deserves to be considered. Consequently, the application for leave to appeal is granted and disposed off accordingly.