HITESHBHAI MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS application for leave to appeal appears to have been signed and prepared in April,2007 and moved for the first time on 11.12.2007, when notice returnable on 28.01.2008 was ordered to be issued. On 09.04.2008, even as learned advocate for the petitioner was absent, the board indicated that the notice of rule was not served and the hearing was adjourned to 19.06.2008, according to order. On 11.07.2008, time was sought for finding out address of the unserved respondent. Thereafter, the hearing was adjourned from time to time till 18.09.2008, when fresh rule returnable on 21.10.2008 was ordered to be issued. On 21.10.2008, hearing was adjourned to 26.11.2008 as the rule was not received back. According to order dated 24.12.2008, notice was directed to be served to the respondent no.2 by affixing it on the last known address of respondent no.2 and the matter was ordered to be listed on 28.01.2009. On 21.04.2009, the last known address of the respondent no.2 was furnished by learned counsel for the petitioner, and the order dated 24.12.2008 was directed to be scrupulously followed. Thereafter on 08.07.2009, hearing of the application was fixed today even as the notice was shown to have been unserved as yet. It was submitted by learned counsel, Mr. Buch that now he has got the fresh address of the respondent and he may be able to serve if fresh notice were to be issued. Since it was not clear and not traceable as to when and how the initial order to issue notice was converted into Rule and since the matter, even for grant of special leave to appeal, appears to have been hanging fire at the admission stage for more than two years and already listed 24 times, learned counsel was requested to satisfy the Court as to whether special leave was required to be granted. The grounds of appeal and the evidence in that regard were read and learned counsel was heard in extenso.

(2.) IT was seen that the applicant herein, original complainant, sought to challenge the order dated 02.02.2007 of learned Metropolitan Magistrate in Criminal Case No. 1739 of 1996 whereby, the respondent was acquitted of the charge of offence punishable under Section 138 of the Negotiable Instruments Act,1881. According to the complainant, the respondent had given nine cheques of Rs. 50,000/- each, which were dated from 01.04.1996 to 04.04.1996 and they were, upon presentation, dishonoured. According to the deposition of the complainant himself, the respondent's firm was closed in 1993 and the last of the business transactions between the parties had taken place in 1992. Besides the other issues and defenses which were upheld, the defense of there being no legally enforceable debt was raised. Examining the evidence in that regard, it was found from the evidence on record that the books of accounts and entries therein produced in support of the evidence of debt did not inspire confidence and a letter acknowledging debt (Exh.4) was heavily relied upon by the complainant to prove liability of the respondent. Although the contents of the letter were not admitted, the signature thereon of the respondent was not in dispute. That letter read as under:-

(3.) LEARNED counsel, Mr. Buch vehementally argued that, since the respondent has acknowledged the debt in writing, the cheques could have been presumed to be in discharge of that liability, even without help of the statutory presumption in his favour. Relying upon the full bench decision of this Court in Hindustan Apparel Industries v. Fair Deal Corporation [AIR 2000 Guj.261], learned counsel submitted that drawing of cheque and dishonour thereof was by itself acknowledgment of debt and no further proof of the debt or its enforceability was required. He relied upon the observations of the Court to the effect that payment by cheque, which is dishonoured, should amount to acknowledgment of a debt and a liability. By necessary consequence, there will be saving of limitation as envisaged by the Limitation Act. A cheque would prima facie amount to an admission of debt unless a contrary intention has been expressed by the person issuing the cheque. Such an admission of payment of debt is to be determined with reference to the point of time at which the purported admission was made, that is to say, when the cheque was issued. Merely because subsequently such a cheque is dishonoured and the admission is retracted, the admission or the acknowledgment can hardly be said to cease as an admission/acknowledgment of liability. To hold otherwise would be contrary to fair play between the parties, justice and equity.