CR.MA/14144/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 14144 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ====================================== == 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== == DHARMESH MANIBHAI PATEL Versus STATE OF GUJARAT & ANOTHER ====================================== == Appearance : MR VM PANCHOLI for Applicant(s) : 1, MR MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR HN BRAHMBHATT for Respondent(s) : 2, ====================================== == CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI CR.MA/14144/2007 2/6 JUDGMENT Date : 11/1/2008 ORAL JUDGMENT 1. By this application under section 482 of the Code of Criminal Procedure, 1973 (the Code), the applicant prays to quash and set aside the complaint being Criminal Case No.7278 of 1998 pending before the Court of the learned Judicial Magistrate First Class, Gandhinagar. 2. The facts stated briefly are that the respondent No.2 herein had lodged the aforesaid criminal complaint against the applicant herein under section 138 of the Negotiable Instruments Act (the Act) on 15th September, 1998. Cognizance was taken pursuant to the said complaint and the trial in respect of the said complaint has commenced. 3. During the course of trial, certain evidence has come on record during the course of examination-in-chief and cross examination of the complainant. Relying upon the said evidence as well as on other grounds, the applicant has filed the present application for quashing the complaint in question. 4. Heard Mr. V.M. Pancholi, learned advocate for the applicant, Mr. M.R. Mengdey, learned Additional Public Prosecutor for respondent No.1 and Mr. H.N. Brahmbhatt, learned advocate for the respondent No.2. 5. Mr. V.M. Pancholi, learned advocate has submitted that the debt in question is a time barred debt, as according CR.MA/14144/2007 3/6 JUDGMENT to the complainant himself, the amount was due somewhere in 1994, whereas notice was given in the year 1998 i.e. after three years. Attention is drawn to Article 18 of the Schedule to the Limitation Act, 1963, which prescribes the period of limitation for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment, to be three years from the time when the work is done, to submit that in the present case, as no demand has been made within the period of limitation, the debt has become time barred and as such, the same has not a legally enforceable debt. It is submitted that accordingly the provisions of section 138 of the Act would not be attracted in the present case. 6. Learned advocate has further pointed out that initially the applicant had deposited the cheque on 30th January, 1998, however, the same was dishonoured on the ground of insufficient funds, pursuant to which, the complainant gave a notice on 8th August, 1998. Thereafter, subsequently the complainant again deposited the cheque on 12-9-1998 which was returned with an endorsement “account is closed”. It is submitted that the complainant has not issued any notice to the applicant accused after the cheque was returned for the second time and has directly filed the complaint before the learned Judicial Magistrate. It is contended that upon depositing the cheque for the second time, the complainant has waived his right to lodge the complaint on the basis of the dishonour of the cheque after it was deposited for the first time on 30th July, 1998. It is CR.MA/14144/2007 4/6 JUDGMENT accordingly submitted that no procedure as required under section 138 of the Act had been followed after the cheque was dishonoured for the second time, hence, the complaint in question could not have been entertained. 7. Learned advocate for the applicant has submitted that the complainant had suppressed the fact regarding depositing the cheque for the second time in his complaint which is subsequently disclosed in his cross examination. It is further submitted that the present applicant had not come at the initial stage when the complaint was lodged and has approached this Court at this stage in view of the evidence that has come on record in the deposition of the complainant. It is submitted that it is not the defence of the applicant that the debt in question is time barred but it is the case of the complainant himself as can be culled out from his deposition that the debt in question is time barred and is therefore, not a legally enforceable debt. It is accordingly submitted that no fruitful purpose would be served by proceeding further with the trial as there is no legally enforceable debt and the complaint in question is therefore, required to be quashed. 8. On the other hand, Mr. H.N. Brahmbhatt, learned advocate for the respondent has drawn attention to the decision of the Apex Court in the case of A.V. Murthi V. B.S. Nagabasavanna, (2002)2 SCC 642 as well as other decisions of the Apex Court to contend that at this stage of the proceedings, this Court cannot adjudicate on the issue as to whether the cheque drawn by the applicant CR.MA/14144/2007 5/6 JUDGMENT was in respect of a debt or liability which was not legally enforceable. It is submitted that the Apex Court has in the aforesaid decisions held that under section 118 of the Act, there is a presumption that until the contrary is proved, every Negotiable Instrument was drawn for consideration. Reliance is also placed upon a decision of the Supreme Court in the case of M.M.T.D. Limited and another V. MEDCHL Chemicals and Pharma (P) Limited and another (2002)1 SCC 234, wherein the Apex Court had held that the onus to prove the non- existence of a debt or liability lay on the drawer and had to be discharged at the trial. It is accordingly, submitted that no case for intervention is called for at this stage and therefore, the application deserves to be dismissed. 9. In the background of the facts noted hereinabove, this Court is of the view that a challenge to the complaint should be made out on the basis of the facts disclosed in the complaint. While considering a petition for quashing a complaint under section 482 of the Code, all that this Court is required to examine is as to whether the allegations made in the complaint constitute the offence alleged therein. This Court cannot take into consideration the evidence led during the course of the trial for the purpose of quashing the criminal complaint. 10.Moreover, examining the facts of the present case in the light of the decisions of the Supreme Court referred to hereinabove, it is apparent that this Court at this stage cannot adjudicate upon the issue as to whether the debt in question is a legally enforceable debt. Under the CR.MA/14144/2007 6/6 JUDGMENT circumstances, this Court does not deem it fit to entertain the present application. 11.In the result, the application fails and is accordingly rejected. Notice is discharged. 12.However, it is clarified that it would be open to the applicant to raise all the contentions raised before this Court in the present application before the trial Court. Needless to state that the trial Court shall consider and deal with all the submissions and contentions raised by the applicant in his defence. (H.N.DEVANI, J.) shekhar/-