1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4667 OF 2009 Shailesh Bajaj .. Applicant Vs The State of Maharashtra and Another .. Respondents Ms. Sonal i/b Mr. Prasad Das for the applicant Mr. Y.S. Shinde, APP for the State CORAM : D.G. KARNIK, J. DATE : 10th December, 2009 P.C.: 1. Heard learned counsel for the applicant. 2. By this application, the applicant prays that the criminal complaint bearing No. 467/S/03 filed by respondent no. 2 ( complainant ) pending before the Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai be quashed. 3. Two points are urged before me by the learned counsel for the applicant. Firstly, the petitioner submits that the complaint under Section 138 of the Negotiable Instruments Act was barred by limitation. Secondly, he submitted that there was no existing RMA 17appln4667-09.sxw 2 liability in respect of the cheque and therefore, the complaint was not maintainable. 4. On dishonor of the cheque in question, a demand notice was issued by the complainant on 3rd January, 1997 and was received by the applicant on 4th January, 1997. The period of 15 days available for payment expired on 19th January, 1997 and the complaint was filed on 19th February, 1997. Learned counsel for the petitioner submitted that the complaint ought to have been filed within 30 days of 19th January, 1997 i.e or or before 18th February, 1997. As the complaint was filed on 19th February, 1997 which beyond the prescribed period, it was barred by limitation. In case of M/s. Saketh India Ltd and Ors Vs M/s. India Securities Ltd; 1999 CRL.L.J. 1822, the Supreme Court has held that the period of limitation for filing of the complaint will be reckoned from the day immediately following the day on which period of 15 days from date of receipt of notice by drawer expires. Therefore, the period of limitation of 30 days would have to be counted not from 19th January, 1997 but from 20th January, 1997. So calculated the complaint which has been filed on 19th February, 1997 was RMA 17appln4667-09.sxw 3 within the period of limitation. The contention that the complaint was barred by limitation has therefore, no merit. 5. As regards the contention that there was no existing liability, learned counsel for the applicant submitted that apart from the cheques issued for repayment of loan and interest thereon, the applicant had delivered to the complainant 86800 shares of Sesa Goa Limited. The shares were sold and the entire amount of loan was recovered by the complainant by way of sale of shares of Sesa Goa Limjited. The total loan granted by the complainant was Rs. Two crores. By sale of 33,300 shares of Sesa Goa Limited, the complainant recovered a sum of Rs. 1,04,63,050/-.What was the amount recovered by the complainant by sale of remaining 53500 shares of Sesa Goa Limited is not disclosed by the applicant. Whether the entire amount of loan and interest was recovered by the complainant by sale of shares of Sesa Goa Limited, could be decided only after the evidence is led in the matter. 6. Under Section 118 of the Negotiable Instrument Act, there is presumption of consideration for every negotiable instruments. Section 139 of the Negotiable Instrument Act creates an additional RMA 17appln4667-09.sxw 4 presumption that in case of a cheque it shall be presumed unless contrary is proved, that all the cheque was received for discharing the whole or part of any debt or other liability. Thus, there is a presumption that the cheque is drawn for consideration and is issued in respect of the debt or liability. Of course, the presumption is rebuttable. The applicant, would be required to prove at the trial that there was no existing liability. The prosecution cannot be quashed at the threshold on the basis of unsubstantiated contention of the petitioner that there was no existing liability in respect of the cheques. 7. For these reasons, there is no merit in the application which is hereby dismissed summarily. (D.G. KARNIK, J.) RMA 17appln4667-09.sxw 5 RMA 17appln4667-09.sxw