DILIPKUMAR MANHARLAL VYAS Vs. GIRDHARLAL HIRAJIBHAI

JUDGEMENT

(1.) This appeal is filed at the instance of the appellants-original complainants, challenging the judgment and order dtd. 31/7/2007 passed by learned Judicial Magistrate First Class at Manavdar, District- Junagadh in Criminal Case No.176 of 2005. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent No.1-original accused for the offence punishable under Sec. 138 of the N.I. Act.

(2.) Brief facts leading to the present case in nutshell are as under: That original complainant had given the friendly loan of Rs.2,00,000.00 to the respondent No.1 by cheque No.70781 dtd. 15/12/1998 and said amount had been withdrawn by the respondent No.1 and accordingly, respondent No.1 had received the same from the original complainant. That said amount had been returned back and for that sum of Rs.60,000.00 had been paid in cash and for the remaining amount of Rs.1,40,000.00, cheque dtd. 31/12/2004 had been given by the respondent No.1. The said cheque had been deposited in the bank account, but the said cheque had been returned with banker's endorsement "account is closed". Thereafter, the original complainant had issued the requisite notice under Sec. 138 of the N.I. Act on 14/2/2005 and the said notice had been duly received by the respondent No.1 on 18/2/2005, to which, no reply had been given by the respondent No.1. Thereafter, original complainant had filed the above mentioned criminal case before the learned Magistrate and evidence had been recorded and thereafter, the learned Magistrate by order dtd. 31/7/2007, had acquitted the respondent No.1. Therefore, being aggrieved with the said judgment, this appeal is preferred at the instance of the appellant- original complainant.

(3.) Mr. J. R. Shah, learned advocate on record for the appellants, has invited attention of this Court to the findings and reasons recorded in the impugned order by the learned Magistrate. He has submitted that while deciding the said complaint, learned Magistrate has arrived at conclusion that cheque issued against a time barred debt cannot be treated as acknowledgment in eye of law. On examination of disputed cheque, the learned Magistrate has noticed that in column of date, the year has been printed of "19" whereas the date endorsed in handwriting has been mentioned as 15/12/2004, and therefore, the learned Magistrate has observed that if at all disputed cheque has been given by the accused to the appellants in the year- 2004, then in the disputed cheque year "20" has not been printed. This has led the learned Magistrate to draw inference that cheque had been given in the year-1998, when the loan has been given by the appellant to the accused. In addition to the same, the learned Magistrate has further observed in the impugned judgment that loan transaction has taken place in the year-1998 and on that date, blank cheque has been given by the accused to the appellant and the said cheque, which has been given as security has been deposited deposited by the appellant in the year-2004, and therefore, the claim of the appellant was outside the period of limitation. It is to be noted that in the impugned judgment, learned Magistrate has not considered the statutory presumption of Sec. 118 and/or Sec. 139 of the N.I. Act.