TMI Blog2003 (3) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... ents Act He was awarded a punishment of fine of ₹ 1,50,000/-. In default of payment, he was sentenced to undergo imprisonment for three months. Out of the fine, ₹ 75,000/- was ordered to be paid to the 1st respondent-complainant. 4. The accused felt aggrieved. He filed an appeal. It was dismissed by the Sessions Judge vide judgment dated January 23, 1996. Undaunted, he filed a Criminal Revision Petition in this Court. 5. The matter was posted before a learned single Judge. It was contended that on the date of issue of the cheque, the accused was not under a legally enforceable debt or liability. Even if there was any claim for recovery of money it was barred by limitation. Thus, he could not have been found guilty of an offence punishable under Section 138 of the Act. In support of this contention, reliance was placed on a single Bench decision of this Court in Joseph v. Devassia (2000 (3) KLT 533). 6. The learned single Judge considered the matter. He expressed reservation about the view taken by the learned Judge in Joseph's case. Hence, this reference to the Division Bench. 7. Mr. Benny Gervacis, learned counsel for the petitioner has contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten promise matures into an enforceable contract. This is so despite the fact that the limitation for recovery of the amount may have expired before the making of the written promise. 11. Learned counsel for the petitioner submits that Section 25(3) of the Contract Act cannot be invoked to interpret the provisions of Section 138 of the Negotiable Instruments Act. 12. The contention cannot be accepted. Section 138 provides for a penalty in a case where a cheque is dishonoured on account of insufficiency of funds. The cheque has to be by way of payment of a legally enforceable debt or a liability. The liability may arise out of a contract or otherwise. Thus, to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act cannot be said to be irrelevant. These can provide a cause for a legal liability. Resultantly, when a person writes a cheque and delivers it to a person, the drawee not only gets the civil right to present the cheque and recover the amount, but in the event of the cheque being dishonoured the person who has issued the cheque becomes liable for prosecution under Section 138. In order words, the issuance of a cheque beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be permissible for the accused to contend that the liability was not legally enforceable. 16. There is another aspect of the matter. It can happen that a cheque may be executed under coercion and yet the person who had drawn the cheque may face prosecution. 17. It is undoubtedly correct that Section 139 raises a presumption in favour of the holder of a cheque. But it creates only a rebuttable presumption. It is still open to the person who has delivered the cheque to prove the necessary facts and show that the cheque had been issued without any consideration or that it was not in pursuance to any legally enforceable debt or other liability. 18. Learned counsel for the petitioner pointed out that the courts have consistently taken the view that the plea of limitation is available as a valid defence to the accused. Learned counsel referred to the decisions in Girdhari Lal Rathi v. P.T.V Ramanujachari and Anr. (1997 (2) Crimes 658), Smt. Ashwini Satish Bhat v. Shri. Jeevan Divakar, (1999 DCR 470) and Joseph v. Devassia (2000 (3) KLT 533). 19. We have examined these decisions. Regretfully, though respectfully, we are unable to concur with the view taken by the Andhra Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Mr. Mathew John points out that the subsequent decisions of the Supreme Court militate against the contention raised by the counsel for the petitioner. 22. The matter appears to have been considered by their Lordships of the Supreme Court in A.V. Murthy v. B.S. Nagabasavanna (2002 (2) SCC 642). On a perusal of the judgment, we find that the matter was considered by the Supreme Court in the context of the provisions contained in the Negotiable Instruments Act as well as those of the Contract Act. However, the issue of limitation was left open. But what deserves mention is that even though the learned Sessions Judge had quashed the proceedings as the limitation in recovering the money had expired and the order had been upheld by the Karnataka High Court, yet, their Lordships had reversed the decision. This is indicative of the fact that the accused was not entitled to escape liability to suffer penalty merely on account of the fact that the limitation for recovery of the amount had expired before the date of the issue of the cheque. When examined in this light, the dismissal of the SLP in Joseph's case cannot be said to be the enunciation of law which may be binding under A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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