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2025 DIGILAW 1936 (MAD)

Chandra (Since Deceased) v. Veerasamy

2025-04-07

K.K.RAMAKRISHNAN

body2025
ORDER : K.K. Ramakrishnan, J. This appeal has been filed to set aside the Judgment of the Appellate Court passed by the VI Additional District and Sessions Court, Madurai, Crl.A.No.15 of 2014, dated 15.09.2016, reversing the order of conviction made in S.T.C.No.315 of 2012, dated 13.02.2014 on the file of the Judicial Magistrate Court No.2 (Fast Track Court), Madurai. 2. The appellant is the complainant in S.T.C.No.315 of 2012. She filed the said S.T.C with the following averments:- The respondent borrowed a sum of Rs.2,75,000/- on 06.12.2004 and also agreed to pay the interest at the rate of 1 % per month. He also handed over the documents as collateral security. Thereafter, he had not repaid the said amount. On 24.04.2009, the respondent along with his son, approached the appellant and received the said original documents to mark the same in a civil suit pending between the respondent and his sister. On that day also, he received a further sum of Rs.25,000/- and also agreed to pay the total amount of Rs.3 lakhs. Thereafter, on 06.01.2011, to discharge the said debt, he issued a cheque bearing No.626533 for a sum of Rs.5 lakhs, which was drawn on the State Bank of India, Srivilliputhur Branch, and the same was presented by the appellant in her bank namely, Karur Vysya Bank, Gnanaolivupuram Branch and the same was returned on 17.02.2011 with an endorsement “funds in-sufficient”. Hence, the appellant issued legal notice on 09.03.2011. Even though, the respondent received the notice, did not send any reply notice. In such circumstances, the appellant filed a complaint under Section 200 Cr.P.C., r/w Sections 138 Negotiable Instrument Act before the Judicial Magistrate Court No.2 (Fast Track Court), Madurai. The learned Judicial Magistrate took the complaint on file in S.T.C.No.315 of 2012. 3. Thereafter, the petitioner to prove her case, examined herself as P.W.1 and marked Ex.P.1 to Ex.P.6. On the side of the respondent, the father of the respondent was examined as D.W.1 and marked Ex.D.1 to Ex.D.7. 4. The learned trial Judge has not accepted the case of the respondent that the debt was time barred one and also he invoked the presumption under Section 138 of Negotiable Instrument Act and convicted the respondent by the judgment dated 13.02.2014 and directed him to undergo 1 year Simple Imprisonment and also directed to pay an amount of Rs.5,00, 000/- as compensation. 5. 5. Aggrieved over the same, the respondent filed an Appeal in Crl.A.No.15 of 2014, before the file of the VI Additional District and Sessions Court, Madurai. 6. The learned Appellate Judge considering both oral and documentary evidence held that the alleged transaction of issuance of cheque for the debt amount is time barred one and does not satisfy the ingredients of Section 25(3) of the Contract Act, and the cheque was not legally enforceable. The learned Appellate Judge after considering the case of the respondent and the number of precedents, held that there was no legally enforceable debt and the debt was barred by limitation. Further, held that there was no relationship between the complainant and the respondent. Therefore, he acquitted the respondent from the offence under Section 138 of Negotiable Instruments Act. Hence, the appellant/complainant preferred this appeal before this Court. 7. The learned counsel for the appellant submitted that there is no bar to receive the cheque for the time barred debt. In this case, issuance of cheque was admitted and the plea of the respondent that the debt was time barred one is liable to be rejected on the ground that the specific case of the appellant is hat on 05.01.2011, the respondent received further amount and issued a cheque by calculating the interest for the entire amount covered under 06.02.2004 transaction. Therefore, there is no case of time barred debt and even assuming that under Section 25(3) of the Contract Act, the appellant is entitled to file a case for the time barred debt. To substantiate his contention, he also relied on the following precedents:- i) The judgment rendered in National Insurance Co.Ltd., Vs. Seema Malhotra reported in (2001) 3 SCC 151. ii) The judgment rendered by this Court in Senthilkumar Vs. P.Swaminatha Pillai reported in (2019) 2 Bankmann 139 . iii) The judgment rendered in Harbour View Residency (P) Ltd., Vs. Sree Gokulam Chit and Finance Co. (P) Ltd reported in (2022) Supreme (Online)(KER) 63064. iv) The judgment rendered in Rajeev Kumar Vs. The State NCT of Delhi & Another in Crl.L.P.212 of 2021 & Crl.M.A.20429 of 2021. v) The judgment of Hon'ble Division Bench of Kerala High Court in Dr.K.K.Ramakrishnan Vs.Dr.K.K.Parthasaradhy & Another reported in 2003 SCC OnLine Ker 420. vi) The judgment of this Court in A.R.M Nizmathuallah Vs. iv) The judgment rendered in Rajeev Kumar Vs. The State NCT of Delhi & Another in Crl.L.P.212 of 2021 & Crl.M.A.20429 of 2021. v) The judgment of Hon'ble Division Bench of Kerala High Court in Dr.K.K.Ramakrishnan Vs.Dr.K.K.Parthasaradhy & Another reported in 2003 SCC OnLine Ker 420. vi) The judgment of this Court in A.R.M Nizmathuallah Vs. Vaduganathan reported in 2008 (2) Crimes 481 (Mad.) vii) The Judgment of Hon'ble Division Bench of Bombay High Court in Dinesh B.Chokshi & Others reported in 2013 1 MhLJ (cri) 78. viii) The judgment of Hon'ble Punjab and Haryana High Court in Sumit Singls Vs. Kala Mandir Saree and Jewellers. 8. The learned counsel for the respondent submitted that the learned Appellate Judge considering the factual and the legal aspects rendered the finding that the ingredients of Section 25(3) of the Contract Act are not made out to accept the plea of the appellant that the issuance of cheque to discharge the time barred debt is legally maintainable. Hence, in the case of the appeal against the acquittal, there is no scope for interference with the finding of the learned Appellate Judge to hold that the issuance of cheque for the time barred debt is legally acceptable. To substantiate him claim, he has also relied upon the following precedents:- i) S.Natarajan Vs. Sama Dharman And another reported in (2021) 3 SCC (Cri) 63. ii) The judgment rendered by this Court in C.Ramesh Vs. S.Sakthivel reported in (2023) 2 MWN (Cr.) DCC 40 (Mad.). i ii) The judgment rendered by this Court in Selvakumar Vs. P.Lakshmanan in Crl.R.C.(MD)No. 354 of 2019 dated 22.08.2023 iv) The judgment rendered by the High Court of Gujarat At Ahmedabad in Shiram Transport Finance Co,Ltd., Thro Jadeja Indravadansinh Vikramsinh Vs. State of Gujarat & Another in R/Criminal Misc.Application (For Leave To Appeal)No.20475 of 2023 In F/Criminal Appeal No.41335 of 2023. - Hence, he seeks to confirm the judgment passed by the learned Appellate Judge. 9. This Court has perused the records and the impugned judgment passed by the learned trial Judge. 10. The only question arising for consideration in this appeal is whether the appellant's case of enforcement of time barred debt without satisfying the ingredients of the Sections 25(3) of Contract Act is legally maintainable or not? 11. 9. This Court has perused the records and the impugned judgment passed by the learned trial Judge. 10. The only question arising for consideration in this appeal is whether the appellant's case of enforcement of time barred debt without satisfying the ingredients of the Sections 25(3) of Contract Act is legally maintainable or not? 11. In order to claiming the benefit under Section 25(3) of the Contract Act, the following conditions must be satisfied:- i) It must refer to a debt which the creditor but for the period of limitation, might have enforced; ii) there must be a distinct promise to pay wholly or in part such debt; iii) the promise must be in writing signed by the person or by his duly appointed agent. 12. It is the admitted case of the appellant that there was no promise made in writing signed by the respondent to make the payment of time barred debt. In this case, admittedly, the amount was received on 06.12.2004. The alleged cheque was issued on 06.01.2011. The issuance of cheque on 06.01.2011 is not proved through legal evidence. 13. The case of the appellant is that at the time of the giving an amount of Rs.2,75,000/-, the appellant received the original document of the respondent for security purpose. The same was not returned to D.W.1, the father of the respondent. P.W.1 deposed that he handed over the original documents to the custody of the respondent for filing the said documents as exhibits in the suit pending between the respondent's family members. 14. But, the case of the respondent is that he discharged his liability and he is not liable to pay any amount. 15. Section 114(i) of the Evidence Act, is as follows:- “114(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.” 16. As per the Section 114(i) of the Evidence Act, once the original documents is entrusted with the debtor, the legal presumption is that he discharged the liability unless the contrary is proved by the creditor. In this case, no evidence was adduced to prove the contrary on the side of the creditor namely, the appellant. 17. Apart from that, as rightly argued by the learned counsel for the respondent the cheque was not supported by legally enforceable debt. In this case, no evidence was adduced to prove the contrary on the side of the creditor namely, the appellant. 17. Apart from that, as rightly argued by the learned counsel for the respondent the cheque was not supported by legally enforceable debt. The time barred debt is not legally maintainable without satisfying the above said ingredients of 25(3) of the Contract Act. 18. The learned counsel on either side produced number of precedents to substantiate whether their claim that the cheque issued for discharging the time barred debt is legally maintainable or not. This Court considered all the precedents relied by both the parties. Even though, the judgments relied by the appellant namely, the complainant, the requirement is that the promise must be reduced in writing to make the payment of debt. This Court in the case of C.Ramesh Vs. S.Sakthivel reported in 2023(2) MWN (Cr.) DCC 40 (Mad.) made an elaborate discussion in this aspect and also held as follows:- “14.The provision under Section 25(3) of the Indian Contract Act, 1879, deals with time-barred debt. From a close reading of the said Section, it is made clear that with regard to payment of time-barred debt, there must be a distinct promise to pay either wholly or part of the same. Further, the promise must be in writing either signed by the person concerned or by his duly appointed agent. Thus, it is clear that unless a specific contract in the form of novation is created with regard to the payment of timebarred debt, Section 25(3) of the said Act cannot be invoked. A perusal of the Limitation Act looks into the vital distinction between “promise to pay and acknowledgement of debt”. The distinction between an acknowledgement under Section 18 of the Limitation Act, 1963 and a promise within the meaning of Section 25(3) of the Contract Act, 1872 is of great importance. Both an acknowledgement and a promise are required to be in writing, and signed by the party or his agent. In the case on hand, even according to the respondent, the loan was advanced to the petitioner on 25.03.2005 and the cheque was issued in order to repay the said amount on 04.08.2009. Thus, by the time the cheque was issued, the debt was barred by limitation, since there was no valid acknowledgement of the liability within the period of limitation. Thus, by the time the cheque was issued, the debt was barred by limitation, since there was no valid acknowledgement of the liability within the period of limitation. It is also clear from Section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the dishonour of the cheque under Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge or wholly on the part of any debt or other liability of the drawer to the payee. The explanation to Section 138 defines the express 'debt as liability' as a legally enforceable debt in other liability. It cannot be said that a time- barred debt is a legally enforceable debt. The accused cannot be convicted under Section 138 of the Negotiable Instruments Act, since the time-barred debt cannot be construed as a legally enforceable debt. Further, for criminal liability to be made out under Section 138 of the Negotiable Instruments Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In the case on hand, as stated supra, the debt itself is barred by limitation on the date of issuance of the cheque. Therefore, there was no legally enforceable debt or other liability to attract the offence under Section 138 of the Negotiable Instruments Act. Even the payment of interest till the issuance of cheque, cannot amount to acknowledgement and liability. Both the acknowledgement and a promise are required to be in writing, signed by the party or his agent authorized on that behalf, and both have the effect of creating a fresh starting point of limitation. Further, it would extend the period of limitation since the cash payment was made. The cheque in question was issued in discharge of time- barred debt. It cannot be said that time-barred debt is a legally enforceable debt. Therefore, the accused cannot be convicted under Section 138 of the Negotiable Instruments Act on the ground that the debt was not legally recoverable.” 19. Another judgment of this Court in Crl.RC.(MD)No.354 of 2019 also held in similar lines:- “13.If the cheque was issued only in respect of time barred, it cannot be stated that offence is committed under Section 138 of Negotiable Instruments Act. Another judgment of this Court in Crl.RC.(MD)No.354 of 2019 also held in similar lines:- “13.If the cheque was issued only in respect of time barred, it cannot be stated that offence is committed under Section 138 of Negotiable Instruments Act. In the case on hand also, the cheque was issued for time barred debt and thereby the said case laws are squarely applicable t the present facts of the case.” 20. Therefore, in view of the above factual and legal circumstances, since the case is arising out of appeal against the acquittal, the view taken by the learned Appellate Judge also the possible view, this Court is not inclined to accept the case of the appellant. Hence, the appeal is devoid of merits and the same is liable to be dismissed. 21. Accordingly, the appeal is dismissed and the Judgment of the Appellate Court passed by the VI Additional District and Sessions Court, Madurai, Crl.A.No.15 of 2014, dated 15.09.2016, reversing the order of conviction made in S.T.C.No.315 of 2012, dated 13.02.2014 on the file of the Judicial Magistrate Court No.2 (Fast Track Court), Madurai, is hereby confirmed.