1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO.63 OF 2010 IN STAMP NUMBER MAIN NO.2328 OF 2009 Wibro Construction Company Ltd., Represented by its Proprietor Mr. K. Abdulla, Major in age, Resident of Panaji, Goa. …. Applicant V/s 1. Mrs. Nasia Nasir, Principal of Cambridge School, Varca, Salcete, Goa. 2. S T A T E. …. Respondents Mr. Arun Bras De Sa, Advocate for the Applicant. CORAM : N.A. BRITTO, J. DATE : 28th JULY, 2010. ORDER : Heard. 2. The complainant seeks leave to appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 by judgment dated 30/04/2009 of the learned Additional Sessions Judge, Panaji. 3. The case of the complainant was that the complainant had lent money to the accused for construction of the building in the sum of Rs.52,86,320/-, after the complainant came to know the accused in the 2 year 1995 or thereabout. The complainant stated that in repayment of the said sum, the accused gave to the complainant a cheque dated 8/08/2002 drawn on Punjab and Sind Bank, Panaji for Rs.52,86,320/- towards the repayment of the dues, but when the complainant presented the said cheque for encashment, the same was returned due to insufficient funds and the complainant addressed the legal notice to the accused on 13/08/2002 calling upon the accused to pay the amount due within 15 days from the date of the notice, which the accused received on 14/08/2002, but did not comply with the same. 4. The case of the accused in answer to the notice by letter dated 23/08/2002 was that the accused had issued blank cheques in favour of the complainant. Accused denied having taken a loan of Rs.52,86,320/-. The accused stated that she had obtained an amount only of Rs.2 lacs from the complainant and the complainant had misused one of the blank cheques issued by her, by writing on the same. 5. The complainant examined himself in support of his case while the accused also examined herself and two officers from the Income Tax Department. The accused was initially convicted by the learned JMFC, Panaji by order dated 26th/27th-09-2005, but has been acquitted by the impugned judgment. Shri Bras De Sa, the learned Counsel appearing on behalf of the applicant/complainant submits that the accused in the 3 course of the trial had paid to the complainant a sum of Rs.7 lacs and that is a strong admission of the liability of the accused towards the complainant. Counsel submits that in case the accused had taken only Rs.2 lacs from the complainant, the accused would not have paid Rs.7 lacs in the course of the trial of the case. 6. The learned Additional Sessions Judge has acquitted the accused on various counts. The learned Additional Sessions Judge, regarding the said payment made by the accused, has observed that only because the accused had effected the said payment ipso facto did not give any benefit to the complainant and has further observed that subsequent negotiations in the proceedings to settle the claim and effecting some payment thereof would not in any way frustrate the operation of law or subvert the process of law and when any criminal liability is to be fastened on any person then provisions of the law must be followed. 7. The said payment made by the accused was certainly a circumstance to be taken into consideration against the accused, but I must hasten to add that there are other circumstances more weighty against the complainant for which the accused would be entitled to be acquitted. 8. The accused was able to obtain an admission from the 4 complainant that the money was lent by the complainant to the accused in the year 1995. The accused in her evidence had stated that she knew the complainant from the time when the complainant had given the loan amount to her and had further stated that she had met the complainant in the year 1997 or 1998. The learned Additional Sessions Judge came to the conclusion that the loan transaction between the complainant and the accused might have taken place latest by 1997 or 1998 and further held that the alleged debt was time barred and could not be enforced at law. In this context, reliance could be placed on the decision of this Court in Narendra V. Kanekar V/s. Bardez Taluka Co-op. Housing Martgage Society Ltd. & anr. (2006 (6) Bom. C.R. 874) wherein this Court observed that; 9. Mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the explanatory in discharge of a legally enforceable debt. There is no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgment of liability made in writing before the expiration of the period of limitation, is enough to start a fresh period of limitation. Likewise, when a debt has become barred by limitation, there is also section 25(3) of the Contract Act, by which, a written promise to pay, furnishes a fresh cause of action. In other words, what Clause (3) of section 25 of the Indian Contract Act in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below section 138 of the Act. 9. This Court also stated that; 8. The learned Division Bench of Kerala High Court 5 has in terms not followed the said three decisions noted hereinabove, including the judgment of this Court in the case of Ashwini Satish Bhat v. Shrijeevan Divakar Lolienkar (supra). As far as mere issue of cheque is concerned, issued after the expiry of period of limitation, then there is no dispute that this Court would be bound to follow the Judgment in the case of Ashwini Satish Bhat v. Shrijeevan Divakar Lolienkar (supra), being a Judgment of a coordinate bench and, to that extent, the ultimate finding in the case of Dr. K.K. Ramakrishnan v. Dr. K.K. Parthasaradhy (supra), with respect, does not appear to be correct and therefore need not be followed. 10. The accused with her own evidence and that of two witnesses examined by her from the Income tax Department was able to prove that when the establishment of the complainant was raided, a blank cheque issued by the accused was found with him. The accused was able to obtain an admission from the complainant that the officers of the Income Tax Department had raided his premises in the year 1998 and also an admission that the complainant had stated before the Income Tax Authorities that he had advanced an amount of Rs.2 lacs to the accused on which interest had come to about Rs.4 lacs. The learned Additional Sessions Judge observed that the evidence of the accused coupled with the evidence of DW2/P.S. Nagrajja and DW3/M.N. Nurti Naik both attached to the Income Tax Department, the accused was able to establish that she was summoned by the Income Tax Officer with a view to seek clarification as to whether she had taken Rs.2 lacs from the complainant. The accused has also stated that she was directed by the Income Tax Officer to deposit Rs.2 lacs directly to the Income Tax 6 Officer and that she was further directed not to pay Rs.2 lacs to the complainant. In other words, the accused had taken a consistent plea not only in her reply to the statutory notice sent by the complainant but had also proved the same through her own evidence and that of her witnesses that she had given blank cheques to the complainant who was a businessman and she had taken a loan of Rs.2 lacs only from the complainant. If at all the accused paid to the complainant Rs.7 lacs in the course of the trial, it is quite probable that that amount was due on principal of Rs.2 lacs plus interest. The accused was able to discharge the initial onus which was on her about non existence of consideration and it was therefore for the complainant to have proved that indeed he had lent Rs.52,86,320/- which the complainant failed to prove and considering that, in my opinion, this is not a fit case to grant leave to appeal against judgment dated 30/04/2009. 11. Consequently, the application is hereby dismissed. N.A. BRITTO, J. NH/-