MEENAKSHISUNDERAM TEXTILE LTD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicants-original accused to quash and set aside the impugned complaint being Criminal Case No.3647 of 2009 pending in the Court of learned Metropolitan Magistrate (Special Negotiable Instruments Act) Court No.7, Ahmedabad filed by respondent no.2 herein-original complainant for the offences under Section 138 of the Negotiable Instruments Act.

(2.) Respondent No.2 herein-original complainant has filed the impugned complaint being Criminal Case No.3647 of 2009 against the applicants in the Court of learned Metropolitan Magistrate, Ahmedabad for the offences under Section 138 r/w Section 141 of the Negotiable Instruments Act for dishonour of the cheque issued by the applicant no.1 herein-original accused no.1 and signed by the applicant no.2 herein-original accused no.2 dated 17.1.2009. That in the said complaint, it is alleged and averred that the accused no.1 was purchasing raw cotton from the complainant since long and the complainant was maintaining the account for sale of goods and receipt of payment from accused no.1 from time to time in books of account maintained by the complainant. It is averred and alleged in the said complaint that balance outstanding and due by accused no.1 to complainant as per the account of accused no.1 in the books of complainant as on 1.4.2005 was Rs. 8,30,46,223/-. That the accused no.1 agreed to pay interest @18% on the balance outstanding (with interest thereon) and accused no.2 issued a cheque no.446270 drawn on Vijiya Bank, HBR Layout, Kalyannagar, Bangalore on 1.4.2005 with authority to complainant to fill in rest of the columns of the said cheque for the amount that may be due and present it for payment at future date. That thereafter, claimed interest on the said amount of Rs. 8,30,46,223/- upto 31.12.2008 and aggregating it to Rs.13,91,96,987/- deposited the said cheque dated 17.1.2009 with their banker and the said cheque came to be returned with an endorsement Account Closed/ Over Due . It is further averred and alleged in the said complaint that thereafter a statutory notice was served upon the accused as required under Section 138 of the Negotiable Instruments Act and accused persons gave two separate replies from two different advocates and denied the payment and liability. That thereafter, the complainant has filed the impugned complaint against the accused persons for the offences under Sections 138 r/w 141 of the Negotiable Instruments Act. That thereafter, learned Magistrate has directed to issue summons/ process against the applicants -accused for the offences under Sections 138 r/w 141 of the Negotiable Instruments Act. Hence, being aggrieved and dissatisfied with the impugned complaint as well as order passed by the learned Magistrate issuing the summons/ process against the applicants for the offences under Section 138 r/w 141 of the Negotiable Instruments Act, the applicants-original accused have preferred the present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure.

(3.) Shri P. M. Thakkar, learned Senior Advocate has appeared on behalf of the applicants-original accused. Shri P. M. Thakkar, learned Senior Advocate for the applicants has vehemently submitted that the applicants have not committed any offences as alleged for the offences under Section 138 of the Negotiable Instruments Act. It is submitted that even according to the complainant the cheque was given to the complainant on 1.4.2005 and the cheque in question is dated 17.1.2009 and therefore, there was no enforceable debt or liability of the accused at the time when the cheque was deposited as the same would be for a time barred debt. It is submitted that, therefore, when the debt being clearly barred by limitation, the said debt not being legally recoverable it cannot be said that for dishonour of the cheque issued for the time bared debt, the applicants have committed the offences under Section 138 of the N.I. Act. In support of his above submission, Shri P. M. Thakkar, learned Senior Advocate for the applicants has relied upon the decision of the Kerala High Court in the case of Sasseriyil Joseph vs. Devassia, 2001 CrLJ 24 (which is reported to have been confirmed by the Hon'ble Supreme Court) as well as decision of the Andhra Pradesh High Court in the case of Girdhari Lal Rathi vs. P. T. V. Ramanujachari & Anr, 1997 2 Crimes 658 as well as unreported decisions of the Delhi High Court in CRL. M.C Nos. 1869 of 2007 & 6479 of 2007.