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2024 DIGILAW 554 (MP)

Dheeraj Kumar Verma v. Sachin

2024-08-08

DINESH KUMAR PALIWAL

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ORDER : DINESH KUMAR PALIWAL, J. This petition under Section 482 of Cr.P.C. has been filed for quashment of complaint case number S.C.N.I.A./3912/2019 (Sachin Vs. Dheeraj) registered under Section 138 of Negotiable Instruments Act, 1881 (in short hereinafter referred to as “the Act of 1881”) against the petitioner filed on behalf of respondent Sachin Jain. 2. Respondent filed a complaint under Section 138 of the Act of 1881 against the petitioner arraigning him as accused with an averment that he borrowed Rs.5,60,000/- from him on various dates between a period from 31.10.2014 to 03.04.2015. He made entries of the aforesaid amount in a diary. When complainant was in need of money, he asked the accused to return the money. The petitioner assured respondent to return the amount soon and in that regard he issued a cheque of an amount of Rs.5,60,000/- dated 02.03.2019 of Corporation Bank, Branch Gopal Ganj, Sagar bearing cheque No.227345. The cheque issued by the petitioner was presented by the respondent in his State Bank account Gujarati Bajar Branch, Sagar on 20.03.2019, but the same was dishonored on account of funds insufficient. Eventually, a notice under Section 138 of the Act of 1881 was sent through his Advocate to the accused on 27.03.2019 which was received by the accused petitioner on 30.03.2019 but he failed to deposit the requisite payment. He by reply dated 15.04.2019 refuse to pay the cheque amount. Hence, the complaint has been filed. 3. Learned Judicial Magistrate First Class, Sagar registered a case and issued summons to the accused petitioner. Hence, this petition under Section 482 of Cr.P.C. has been filed for quashment of the said complaint case. 4. The contention of learned counsel for the petitioner is that as per averments of the complaint, money was given to the petitioner/accused for a period from 31.10.2014 to 03.04.2015, while cheque has been issued on 02.09.2019 i.e. almost after four years of taking of the loan. Since the claim is time barred, no offence has been committed by the petitioner even if the cheque is dishonored. To buttress his argument, learned counsel for the petitioner has placed reliance upon the coordinate bench decision rendered in Arvind Kumar Vs. Punjab National Bank, reported in 2014(1) M.P.H.T. 58 and upon single bench decision of Andhra Pradesh High Court in Girdhari Lal Rathi Vs. To buttress his argument, learned counsel for the petitioner has placed reliance upon the coordinate bench decision rendered in Arvind Kumar Vs. Punjab National Bank, reported in 2014(1) M.P.H.T. 58 and upon single bench decision of Andhra Pradesh High Court in Girdhari Lal Rathi Vs. P.T.V. Ranianujachari & Another, reported in 1997 2 Crimes (HC) 658 , Kishanchand L. Thakur Vs. Narayan L. Ruparel and Anr., reported in 2009 Cri.L.J. (NOC) 474(BOM.) . In the aforesaid decisions it is held that when debt is not legally enforceable compmlaint uner section 138 of the Act of 1881 is not maintainable as Section 138 of the Act of 1881 is applicable to any debt or other liability which would mean that debt or liability which is legally recoverable. In a case where claim has become time barred, provisions under Section 138 of the Act of 1881 cannot be triggered and recovery would be time barred. Thus, on the basis of aforesaid he has prayed for quashment of the complaint. 5. On the other hand, learned counsel appearing for the complainant submits that legality of the enforceable debt or time barred debt is a disputed question of fact and it cannot be gone into within the jurisdiction under Section 482 of Cr.P.C. It is contended that since the petitioner has admitted his signatures on the cheque, the presumption under Section 139 of the NI Act needs to be drawn until and unless he proves to the contrary that the enforced date does not exist and till the petitioner is not entitled to get the present proceedings quashed. Therefore, it is prayed that powers under Section 482 of Cr.P.C. is not required to be exercised. In support of his submission, he has placed reliance on K.Hymavathi Vs. State of Andhra Pradesh and Another, reported in 2023, SCC Online 1128. 6. I have heard learned counsel for the parties at length and perused the record. 7. The debt is time barred or a recoverable debt is a question of fact which can be decided only after recording of the evidence of the parties. Question of limitation in a legal enforceable debt is not a subject matter of Section 482 of Cr.P.C. Hon’ble Supreme Court in the case of S.Natrajan Vs. Sama Dharman and Another, (2021) 6 SCC 413 held as under: “ 6. Question of limitation in a legal enforceable debt is not a subject matter of Section 482 of Cr.P.C. Hon’ble Supreme Court in the case of S.Natrajan Vs. Sama Dharman and Another, (2021) 6 SCC 413 held as under: “ 6. The High Court referred to Section 25(3) of the Indian Contract Act, 1872 on which reliance was placed by the complainant and observed that with regard to payment of time barred debt, there must be a distinct promise to pay either whole or in part the debt; that the promise must be in writing either signed by the person concerned or by his duly appointed agent. The High Court then observed that unless a specific direction in the form of novation is created with regard to payment of the time barred debt, Section 25(3) of the Contract Act cannot be invoked. The High Court then went into the question whether issuance of cheque itself is a promise to pay time barred debt and referred to Sections 4 and 6 of the NI Act. After referring to certain judgments on the question of legally enforceable debt, the High Court stated that for the purpose of invoking Section 138 read with Section 142 of the NI Act, the cheque in question must be issued in respect of legally enforceable debt or other liability. The High Court then observed that since at the time of issuance of cheque i.e., on 1/2/2011, the alleged debt of the accused had become time barred, the proceedings deserve to be quashed. 8. Hon’ble Apex Court in the case of A.V. Murthy Vs. B.S.Nagabasavanna, reported in (2002) 2 SCC 642 held as under: 5. As the complaint has been rejected at the threshold, we do not propose to express any opinion on this question as the matter is yet to be agitated by the parties. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March 1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent. 6. This is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. 9. Hon’ble Apex Court in the case of K.Hymavathi Vs. State of Andhra Pradesh and Another, reported in 2023, SCC Online SC 1128 held as under: “10. From a perusal of the legal position enunciated, it is crystal clear that this Court keeping in perspective the nature of the proceedings arising under the NI Act and also keeping in view that the cheque itself is a promise to pay even if the debt is barred by time has in that circumstance kept in view the provision contained in Section 25(3) of the Contract Act and has indicated that if the question as to whether the debt or liability being barred by limitation was an issue to be considered in such proceedings, the same is to be decided based on the evidence to be adduced by the parties since the question of limitation is a mixed question of law and fact. It is only in cases wherein an amount which is out and out non-recoverable, towards which a cheque is issued, dishonoured and for recovery of which a criminal action is initiated, the question of threshold jurisdiction will arise. In such cases, the Court exercising jurisdiction under Section 482 CrPC will be justified in interfering but not otherwise. In that light, this Court was of the view that entertaining a petition under Section 482 CrPC to quash the proceedings at the stage earlier to the evidence would not be justified. 11. In such cases, the Court exercising jurisdiction under Section 482 CrPC will be justified in interfering but not otherwise. In that light, this Court was of the view that entertaining a petition under Section 482 CrPC to quash the proceedings at the stage earlier to the evidence would not be justified. 11. Notwithstanding the above, the learned Amicus Curiae would submit that the decisions referred to hereinabove would have to be viewed differently keeping in view the subsequent decision of a Constitution Bench of this Court in the case of the Expeditious trial of Cases under Section 138 of NI Act, 2021 SCC Online SC 325 to contend that in the said decision the power of the Magistrate under Section 322 of CrPC being an aspect to be taken into consideration was considered. In a case where the Trial Court is informed that it lacks jurisdiction to issue process for complaints under Section 138 of the Act the proceedings will have to be stayed in such cases. Hence, it is contended that the power of the Trial Court to decide with regard to its jurisdiction is not taken away and in that circumstance exercise of power under Section 482 CrPC by the High Court would be justified. It is further contended by the learned Amicus Curiae that even the position under Section 25(3) of the Contract Act being applicable to criminal proceedings for dishonour of cheque will have to be examined in the background of the provision contained in the Explanation to Section 138 of NI Act which specifies that the debt or other liability enforceable would be only a legally enforceable debt or other liability. In such circumstances if the cheque is issued in respect of the debt which is not enforceable or a liability which cannot be recovered, in such event, the presumption under Section 139 of NI Act would not be available. 12. Having referred to the judgments cited, prima facie we are of the opinion that the decision in S. Natarajan and A.V. Murthy (supra) has taken into consideration all aspects. 12. Having referred to the judgments cited, prima facie we are of the opinion that the decision in S. Natarajan and A.V. Murthy (supra) has taken into consideration all aspects. No other elaboration is required even if the observations contained in the case of Expeditious Trial of Cases under Section 138 of NI Act (supra) is taken note, since, whether the debt in question is a legally enforceable debt or other liability would arise on the facts and circumstance of each case and in that light the question as to whether the power under Section 482 CrPC is to be exercised or not will also arise in the facts of such case. Even otherwise we do not see the need to tread that path to undertake an academic exercise on that aspect of the matter, since from the very facts involved in the case on hand ex facie it indicates that the claim which was made in the complaint before the Trial Court based on the cheque which was dishonoured cannot be construed as time- barred and as such it cannot be classified as a debt which was not legally recoverable, the details of which we would advert to here below. In that view, we have chosen not to refer to the cases provided as a compilation as it would be unnecessary to refer to the same.” 10. In the case in hand it is clearly averred in para 2 of the complaint that money was borrowed by the accused/petitioner between 31.10.2014 to 03.04.2015 and accused petitioner had issued the cheque on 02.03.2019. Considering the aforesaid facts and Hon’ble Apex Court’s dictum in the case of Gimpex Private Limited Vs. Manoj Goel, reported in 2022 11 SCC 705 wherein it is held that in such a case a new liability, operation of presumptions under Section 139 and 118 of NI Act stands repeated or not as a new liability has been created fresh cause of action or not which is explained and such fresh liability of cause of action itself is a subject matter of trial and proof and it cannot be decided in a petition under Section 482 of Cr.P.C. It is also pertinent to mention that the accused petitioner has not disputed his signature on the cheque. He has admitted his signature on the cheque and has not raised any dispute. He has admitted his signature on the cheque and has not raised any dispute. Once the signature is admitted, it is required to be presumed that the cheque was issued towards consideration for the legally enforceable debt. Hence, now, it is a matter of evidence. 11. Considering the aforesaid peculiar facts and circumstances of the case, this Court is of the considered view that the instrument is drawn on 02.03.2019 and the presumption referred under Section 118 of the NI Act and then legal concern referred to Section 139 of NI Act constituted disputed question of fact. The accused/petitioner is required to rebut this presumption during the trial by presenting evidence and the trial Court has to consider this evidence with the principle of preponderance in the mind for the enforcement of the cheque. 12. As far the case laws relied upon by the learned counsel for the petitioner accused is concerned that there was no legal enforceable debt and same is time barred are not applicable in the facts of the case in view of the Apex Court aforementioned case laws. Hence, the case laws relied on by learned counsel for the petitioner are of no assistance to the petitioner at this stage. 13. Therefore, in view of the above discussion, I am of the view that the question of debt being time barred or not can be decided only after the evidence is adduced by the parties as it is a mix question of law and fact and at this stage powers under Section 482 of Cr.P.C cannot be exercised. 14. Consequently, this petition being devoid of merits is dismissed. 15. A copy of this order be sent down to the trial Court through Sessions Judge, Sagar.