Case Note & Summary
The petitioner, Mahadeorao Chatarkar, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against Vilas Dhote alleging dishonour of a cheque dated 16.6.2008. The trial court issued process. The accused filed a criminal revision before the Sessions Judge, Akola, who quashed the process and dismissed the complaint on the ground that the underlying loan was advanced in 2002 and thus the claim was barred by limitation. The complainant challenged this order by way of a criminal writ petition before the Bombay High Court, Nagpur Bench. The High Court allowed the petition, holding that the cause of action under Section 138 relates only to the cheque, which bore the date 16.6.2008. The defence regarding limitation or legally enforceable liability cannot be examined at the prima facie stage and is a matter of evidence. The Revisional Court erred in assuming the defence as correct without trial. The impugned order was quashed and the trial was directed to proceed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Limitation - Cause of action relates to the cheque date, not the underlying debt - The cheque dated 16.6.2008 was dishonoured; the Revisional Court quashed the complaint on the ground that the loan was from 2002 and thus the claim was time-barred - Held that the defence of limitation or legally enforceable debt cannot be examined at the prima facie stage and is a matter of evidence - The Revisional Court erred in assuming the defence as correct without trial (Paras 2-4).
Issue of Consideration
Whether the Revisional Court was justified in quashing the process under Section 138 of the Negotiable Instruments Act, 1881 on the ground that the underlying loan was from 2002 and the complaint was barred by limitation, when the cheque itself bore the date 16.6.2008.
Final Decision
Criminal Writ Petition allowed. Impugned order dated 23.4.2009 in Criminal Revision No.17 of 2009 passed by Sessions Judge, Akola, is quashed and set aside. Trial to proceed.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- cause of action relates to cheque date
- limitation defence cannot be examined at prima facie stage
- quashing of complaint at revisional stage improper
Case Details
2010 LawText (BOM) (01) 64
Criminal Writ Petition No. 312 of 2009
Mr. C.A. Joshi for Petitioner, Mr. S.A. Mohta for Respondent No.1, Mr. A.S. Sonare, APP for Respondent No.2
Mahadeorao s/o Bhimrao Chatarkar
Vilas s/o Panjabrao Dhote, The State of Maharashtra
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Nature of Litigation
Criminal writ petition challenging the order of Sessions Judge quashing process under Section 138 of Negotiable Instruments Act.
Remedy Sought
Petitioner/complainant sought setting aside of the revisional order and restoration of the complaint.
Filing Reason
The Revisional Court quashed the process on the ground that the loan was from 2002 and the complaint was barred by limitation, ignoring that the cheque was dated 16.6.2008.
Previous Decisions
Sessions Judge, Akola, in Criminal Revision No. 17 of 2009 quashed the process and dismissed Summary Criminal Case No.3638/08 on 23.4.2009.
Issues
Whether the Revisional Court was justified in quashing the process under Section 138 NI Act on the ground of limitation when the cheque date was 16.6.2008.
Whether the defence of limitation can be examined at the prima facie stage without evidence.
Submissions/Arguments
Petitioner argued that the cheque bears date 16.6.2008 and the Revisional Court erred in quashing the process by accepting the submission that the loan was of 2002.
Respondent/accused submitted that the cheque was given as security for a loan given in 2002 and therefore the proceedings were rightly quashed.
Ratio Decidendi
Under Section 138 of the Negotiable Instruments Act, 1881, the cause of action relates only to the cheque. The defence regarding limitation or legally enforceable liability cannot be examined at the prima facie stage and is a matter of evidence. The Revisional Court erred in assuming the defence as correct without trial.
Judgment Excerpts
Under Section 138 of Negotiable Instrument Act, the cause of action is relating only to the cheque. The defence regarding limitation or legally enforceable liability or debt cannot be examined at this prima facie stage.
The cheque shows the date as 16.6.2008 and therefore contention regarding limitation, legally enforceable liability or debt etc. cannot be tested without the evidence of the parties to the case.
Procedural History
The petitioner filed a complaint under Section 138 NI Act in the trial court, which issued process. The accused filed Criminal Revision No. 17 of 2009 before the Sessions Judge, Akola, who quashed the process and dismissed the complaint on 23.4.2009. The petitioner then filed the present Criminal Writ Petition No. 312 of 2009 before the Bombay High Court, Nagpur Bench, which allowed the petition on 11.1.2010.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
