Date of taking cognizance not relevant for calculating period of limitation.

Both the above criminal appeals have been preferred by different appellants, who were the complainants before the trial court, the Court of XIII Metropolitan Magistrate, Egmore, Chennai-8 in different calendar cases registered against one and the same accused respectively in C.C.Nos.4219 and 4220 of 2001 and both the above complaints, since came to be dismissed by the trial court, the accused being acquitted of the charges, aggrieved, the complainants in those cases have come forward to prefer the above appeals on certain grounds as pleaded in the grounds of appeal.

2. Since the facts and circumstances in both the above cases are similar and the accused are same and both orders are on common grounds, with consent of parties, both the above appeals are decided in this common judgment.

3. From the materials placed on record and upon hearing the learned counsel for the appellants and the respondent as well, it comes to be known that the amount borrowed by the accused from the complainant in the first of the above criminal appeals is Rs.6,44,275/= and the same in the second of the above criminal appeals is Rs.12,55,525/=; that the dates on which the post dated cheques issued were respectively 10.2.2001 and 7.2.2001 and they have been presented on the same date and since the same had been returned for `insufficiency of funds' on 9.2.2001, on receipt of the returned cheques on 20.2.2001 and with no reply given to the notice issued by the appellants, the complaints have been lodged on 21.3.2001.

4. On the part of the learned Senior Counsel appearing on behalf of the appellants, it would be submitted that on two grounds in both the above complaints, the accused has been acquitted;

i) that there was no legally enforceable liability since the cheque was obtained by force with the help of the Police (para-8 of the judgment) and

ii) that the complaint was barred by limitation (para-9 of the judgment)

5. On the contrary, the learned Senior Counsel would exhort that the cheques have been issued only for liability and the said complaints have been filed within the limitation period. The learned counsel for the appellants would point out that there was no reply, nor any denial of the legal notice issued by the appellants and at this juncture, the learned Senior Counsel would cite three judgments respectively;

i) 2001 SCC Criminal 960 (HITEN P. DALAL V. BRATINDRANATH BANERJEE ) wherein the Honourable Apex Court has held:

"The burden was on the appellant to disapprove (sic. disprove) the presumptions under Sections 138 & 1239, a burden which he failed to discharge at all. The averment in the written statement of the appellant was not enough. Incidentally, the defence in the written statement that the four cheques were given for intended transactions was not the answer given by the appellant to the notice under section 138. Then he had said that the cheques were given to assist the Bank for restricting (Ext.H). It was necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on the record, in its totality, rendered the existence of the fact presumed, improbable. The appellant has done neither. In the absence of any such proof the presumptions under Sections 138 and 139 must prevail."

" Sections 138 and 139 of the Negotiable Instruments Act require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn as noted in State of Madras Vs. A.Vaidynanatha Iyer it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. " It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused." Such a presumption is a presumption of law as distinguished fr