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Santaji Yuvak Bigar Sheti Credit Co-operative Society Ltd. Vs. Dewanand and Another - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberCriminal Application (APPA) No. 193 of 2015
Judge
AppellantSantaji Yuvak Bigar Sheti Credit Co-operative Society Ltd.
RespondentDewanand and Another
Excerpt:
negotiable instruments act, 1881 - section 138 - case referred: ramkrishna urban co-operative credit soc. ltd. ahmednagar vs. shri rajendra bhagchand warma 2010 all mr (cri) 1098 (para 9)......under section 138 of the negotiable instruments act by his judgment and order dated 16/01/2015. 5. learned counsel for the appellant submits that the learned magistrate has taken an erroneous view that the debt represented by the amount of the cheque in question was not legally recoverable as it was barred by limitation period of three years. he submits that the limitation act is a general statute and although it provides limitation for recovery of money to be of three years, it does not apply to a registered society like the appellant and under the maharashtra co-operative societies act, the limitation period provided for recovery of money due to the society is of more years and he submits that in fact there is no limitation prescribed under the societies act and that would mean that.....
Judgment:

Oral Judgment:

1. Heard.

2. Admit.

3. Heard finally by consent.

4. The respondent was prosecuted for dishonour of cheque bearing No.088739 dated 17/10/2012 issued by him for Rs.1,07,000/-, which was drawn on Nagpur District Central Co-operative Bank, Zilla Parishad Branch at Nagpur and issued in favour of the appellant. On merits of the case, the learned Judicial Magistrate, First Class found that the complainant/appellant failed to prove that the cheque in question was issued by the respondent for legally recoverable debt and, therefore, acquitted him of the offence punishable under Section 138 of the Negotiable Instruments Act by his judgment and order dated 16/01/2015.

5. Learned Counsel for the appellant submits that the learned Magistrate has taken an erroneous view that the debt represented by the amount of the cheque in question was not legally recoverable as it was barred by limitation period of three years. He submits that the Limitation Act is a general statute and although it provides limitation for recovery of money to be of three years, it does not apply to a registered society like the appellant and under the Maharashtra Co-operative Societies Act, the limitation period provided for recovery of money due to the society is of more years and he submits that in fact there is no limitation prescribed under the Societies Act and that would mean that even after hundred years also, the loan amount could be recovered by the society. He further submits that the impugned judgment is perverse and needs to be quashed and set aside.

6. Shri Mishra, learned Counsel for respondent No.1 submits that no provision has been shown to the learned Magistrate which gives an indefinite period of time for recovery of loan by the society and, therefore, he submits that there is no merit in the contention of the learned Counsel for the appellant. He further submits that another ground on which the acquittal has been granted is of the cheque in question having been proved to be issued as security for repayment of the loan and if one considers the evidence available in this regard, one would be convinced that it establishes the fact that the cheque in question was issued only as security. Therefore, in his opinion, there is no merit in the appeal.

7. Upon consideration of the impugned judgment and order and also the record of the case, I am of the view that there is considerable force in the argument advanced by learned Counsel for respondent No.1 and there is no merit in the argument of the learned Counsel for the appellant.

8. No evidence has been laid by the appellant to show that the society has been given indefinite period of time for recovery of its loan. Therefore, the finding recorded by the trial Court that the cheque that was issued for repayment of the loan about thirteen years after the sanction of loan without there being any acknowledgment of the debt or any payment coupled with acknowledgment of the debt would have to be held as representing a time-barred debt. The view taken by the trial Court thus cannot be found to be perverse.

9. As rightly submitted by the learned Counsel for respondent No.1, there is also another ground on which the impugned judgment and order rests. The cheque in question, according to the defence taken by the respondent, was issued as only security for repayment of loan to the appellant. The cheque in question was carrying No.088739 and it was a part of the cheque book of which the other cheques bearing Nos.088737 to 088744 were also the part out of which two cheque leaves, i.e. cheque Nos.088737 and 088745, were shown to be used, from the entries in the pass book at Exh.46, respectively on 19/4/1999 and 08/11/1999. This would suggest that cheque No.088739, i.e. the cheque in question, could not have been reasonably used in the year 2012. So, the defence taken by the appellant has been more than probablised. The learned Magistrate has rightly held that the cheque that was issued was only issued as a security for loan, and could not be held to be issued for discharge of legally recoverable debt, there being in existence no debt on the date on which the cheque was issued by following the ratio of the judgment in the case of Ramkrishna Urban Co-operative Credit Soc. Ltd. Ahmednagar Vs. Shri Rajendra Bhagchand Warma - 2010 ALL MR (Cri) 1098.

10. In the circumstances, I find that the view taken by the learned Magistrate is plausible and, therefore, there is no case made out for making any interference in the impugned judgment and order. The appeal deserves to be dismissed.

The appeal stands dismissed.


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