1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.335 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 Janseva Sahakari Bank Ltd. ...Applicant. v/s. Mr. Shankar V. Takawale & Anr. ...Respondents. Mr. V.V.Purwant i/by M.A.Utagikar ,advs. For the Applicant. Mr. Rajesh More, APP For the Respondent No.2. CORAM : J.H. BHATIA, J. DATED : MARCH 15, 2011. P.C. 1 This application is filed by the original complainant seeking leave to prefer appeal against the acquittal under section 138 of the N.I.A. 2 Heard learned counsel for the parties. It is the case of the complainant that the accused/respondent had approached the complainant, which is co-operative bank, for availing loan and accordingly, loan of Rs.10 lac was sanctioned for his business purpose and the loan was disbursed on 22.4.2000. The accused had executed promissory note and other documents in favour of the bank and had also agreed to repay the loan amount with interest as per the terms and conditions of the sanctioned loan. Accused failed to repay loan amount 2 as per the terms and, therefore, his account was treated as non performing asset. Accused allegedly issued a cheque for amount of Rs. 6,30,000/- on 28.2.2004 towards the part payment of outstanding loan amount. Cheque was presented for encashment but was returned dishonoured for want of sufficient funds. In spite of service of notice, accused failed to make the payment, hence the complaint was filed. 3 The learned trial Court acquitted the accused on the two grounds. Firstly, C.W.1 Ramgude, who was examined by the complainant, was not aware if cheque was issued by the accused and handed over to recovery officer Ajay Shinde subject to condition that cheque should not be presented for encashment until the bank issued a letter accepting proposal for one time settlement. Secondly the loan was disbursed in the year 2000 while cheque was issued on 28.2.2004 and thus cheque was issued for time barred loan, which could not be legally enforceable debt or liability within the meaning of Section 138 of the Negotiable Instruments Act. 4 It appears that before the trial Court, it was contended on behalf of the complainant that period of limitation would be six years because the complainant is co-operative society. However, the learned trial Court after referring to the provisions of sub-section (1) of Section 3 92 of the Maharashtra Co-operative Societies Act found that case is not covered by Section 92 in respect of the period of limitation. On perusal of the complaint, I find that complainant had nowhere pleaded in the complaint that accused was a member of the complainant/bank. It also does not appear that any document was produced to show that accused was a member of the bank. If he would be member of the co-operative bank, dispute could be filed under section 91(1)(b) before the Co- operative Court and in respect of that, period of limitation would begin to run from the date on which such member dies and ceases to be member of the society. Sub-section (2) of Section 92 provides that period of limitation in case of any other dispute except those mentioned in sub- section (1) shall be regulated by the provisions of the Limitation Act. As per clause (c) of Section 91(1) dispute may be between a person other than member of the society, with whom the society has any transactions in respect of which any restrictions or regulations have been imposed, made or prescribed under Sections 43, 44 or 45 and any person claiming through such person. Section 44 put restrictions on granting loan to a person, who is not a member but the Co-operative Society may advance loan to a person, who is not member of the society, with prior permission of the Registrar. If a loan is advanced to person, who is not a member of 4 the society, provisions of sub-section (2) of section 92 will be applicable and period of limitation will have to be regulated by the provisions of the Limitation Act and by Section 92(1). 5 In the present case, as per the pleadings in the plaint when the loan was advanced, accused had executed promissory note, besides other documents. When the promissory note is executed, amount becomes recoverable immediately and, therefore, period of limitation begins to run from the day when the promissory note is executed. In this case, loan was advanced on 22.4.2000 while cheque was issued on 28.2.2004. Suit for recovery of the loan could be filed upto 22.4.2002. Loan had become time-barred on 23.4.2003 and it was not legally enforceable debt or liability. If the cheque was issued for such debt or liability, which was not legally enforceable, provisions of Section 138 would not be applicable. Taking into consideration this legal position, I find no fault in the impugned order of conviction. Therefore, no purpose will be served by granting leave to prefer appeal. 6 In the result, application stands rejected. (J.H. BHATIA,J.)