Roshan Kumar Gupta vs State Of Chhattisgarh 34 Crr/1114/2017 ... on 15 January, 2018
The fact of the matter is
that it is none of the plaintiff's case that notwithstanding dishonour of the
aforesaid cheque, the defendant took the property in question from his father or
CS No. 3421/16 Vikas Gupta vs. Satish Kumar Page No. 2 of 4
from him. Thus, it is the view of this Court that there is no legal liability made
out qua the cheque in question as against the defendant. There is no doubt a
presumption as regards consideration attached to a negotiable instrument in
terms of section 118, Negotiable Instruments Act, 1881. However, this
presumption is a rebuttable one. Section 118, Negotiable Instruments Act, 1881
itself starts with 'unless the contrary is proved'. In the case at hand, from
plaintiff's own case, it is clear that there was no legal liability qua the cheque
Ex. PW1/1. Accordingly, the assertions that defendant owes Rs. 10 lacs to the
plaintiff is not correct. This aspect can be looked at from another angle. It would
be an absurd situation if the plaintiff, who continues to retain the immovable
property in question, is also allowed to recover Rs. 10 lacs from the defendant
without him parting with ownership/possession of the same. This would in fact
amount to unjust enrichment. Besides this, the plaintiff has not averred in his
plaint or proved that his father had suffered any loss/damage. Further, this suit,
to my mind, is time barred. The suit, filed on 28.11.2016, on the basis of cheque
dt. 09.09.2013 (Ex. PW1/1) is clearly time barred. The fact that the cheque on
presentation for the second time had returned dishonoured vide cheque return
memo dt. 03.12.2013 (Ex. PW1/3) will not suffice to extend the period of
limitation. The cheque return memo dt. 03.12.2013 (Ex. PW1/3) is not
defendant's 'acknowledgment in writing' that can fall under section 18,
Limitation Act. According to section 6 of Negotiable Instruments Act, 1881 a
cheque is a bill of exchange drawn on a specified banker and not expressed to
be payable otherwise than on demand. Article 35 of the Schedule to the
Limitation Act stipulates a period of three years to institute a suit on the basis of
a bill of exchange and time for the same begins to run from the date on the bill.
In the case at hand, the date mentioned on the cheque Ex. PW1/1 is 09.09.2013.