MINAKSHIBEN DIVYANTBHAI UBHAR ATWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) EVEN as the appeals were admitted and notices of admission were required to be served upon respondent no. 2 before 3rd week of July,2009, the notices are stated to have not yet been served. However, R and P is received and all the appeals are argued at length by learned counsel Mr. Hriday Buch, appearing with Mr. Yogen N. Pandya, for the appellant. The appellants are husband and wife and three appeals have arisen from similar judgements in Criminal Case Nos. 2416/2006, 2417/2006 and 2418/2006 in all of which, the same accused person is acquitted of the charge of offence punishable under Section 138 of the Negotiable Instruments Act,1881.

(2.) THE common legal issue and the controversy is in a very narrow encompass in all the cases and the basic relevant facts are only that the appellants herein, husband and wife, had lent money, without any receipt, to the respondent and received five blank cheques for the amounts of Rs. 45,000/-, 45,000/-, 50,000/-, 50,000/- and 1,00,001/ -. The cheques having been dishonoured in the year 2006, statutory notices were issued and served upon the accused person and a reply, with the common refrain that the monies were repaid to the original complainants, was given by the respondent. In absence of any evidence of having lent money, the complainants, appellants herein, relied upon admission in the reply to their notice to submit that initial burden of proving a legal debt was discharged by them. However, it was seen that it was stated in the said reply in the same breath that the monies lent by the complainants were repaid in installments but the complainants had failed to return the blank cheques which were given by way of security.

(3.) IN the above broad facts, the trial court has, in the impugned judgements, recorded the finding that any legal debt, recoverable on the date of drawing of the cheques and their dishounour, was not proved and the presumption in favour of the complainants stood rebutted by admissions of the complainants themselves in their cross-examination. Even otherwise, the transaction on lending and borrowing money between the parties was admittedly carried out in the year 2002 and the cheques were dishonoured in the year 2006, due to which, debt, if any, was not recoverable on account of being barred by the law of limitation. Even after going through the evidence and considering the submissions of learned counsel Mr. Buch, no reason was made out to take a different view of the matter so as to convert acquittal into conviction. Therefore, all the appeals are dismissed.