Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 1424 - HC - Indian LawsDishonor of Cheque - legally enforceable debt or not - legal notice under Section 138 of the Negotiable Instruments Act duly served upon the petitioner or not - issuance of a cheque for repayment of a time barred debt would amount to a written promise to pay the said debt within the meaning of Section 25(3) of the Indian Contract Act, 1872 or not - HELD THAT:- A cheque is a promise within the meaning of Section 25(3) of the Contract Act. Such a promise is an agreement and is an exception to the general rule that an agreement without consideration is void. Thus, although, on the date of making such a promise by issuing a cheque, the debt which is promised to be paid, may already be time barred, but keeping in view the provisions of Section 25(3) of the Contract Act, the promise/agreement will be valid and would be enforceable. It was, thus, held that issuance of a cheque in repayment of time barred debt would amount to a written promise to pay the said debt within the meaning of Section 25(3) of the Contract Act. Even a perusal of Section 18 of the Limitation Act would show that neither there is a non obstante clause in the same, nor there is any negative terminology used so as to oust the provision of the Section 25(3) of the Contract Act - The provisions of the Negotiable Instruments Act, more so, Sections 118 and 139, raise a presumption, though rebuttable, in favour of the Negotiable Instrument itself, as to several factors, including the factor of consideration etc. and also the fact that the holder of the cheque is a holder in due course and holds the cheque for the discharge of any debt or other liability, in whole or in part. To hold in favour of a person who has consciously issued a cheque after the debt has become time barred, would amount to doing injustice to the person in whose favour the cheque has been issued and would also defeat/frustrate the intent and object of the provisions of the Negotiable Instruments Act and the Contract Act. After a debt has become time barred, any person issuing a cheque subsequent to that, makes a promise to the person in whose favour the cheque is issued, that the said cheque would be honoured. On dishonor, the person to whom the cheque has been issued, would then have the right to pursue the remedy under Section 138 of the Negotiable Instruments Act - in case the proceedings under Sections 138 of the Negotiable Instruments Act are quashed, then the same would result in undue enrichment of the accused person who has managed to linger on the matter on a false promise by issuing the said cheque. This Court conclusively holds that the issuance of a cheque in repayment of a time barred debt amounts to a written promise to pay the said debt within the meaning of Section 25(3) of the Contract Act and the said promise by itself would create a legally enforceable debt or liability, as contemplated by Section 138 of the Negotiable Instruments Act. Thus, issue No. (i) and (ii) are hereby answered in favour of the person in whose favour the cheque has been issued. Whether in the facts and circumstances of the present case, the present petition under Section 482 CrPC would be maintainable? - HELD THAT:- The plea of time barred debt can only be gone into by the trial Court after the parties have led their evidence with regard to their respective pleas. No judgment has been cited by learned counsel for the petitioner in the present case, in which on the basis of said plea of time barred debt, a petition under Section 482 Cr.P.C. has been entertained, much less allowed. Thus, this issue is also decided against the petitioner. Whether in the present case, the petitioner has been able to prove as to what would be the starting point of the period of limitation, so as to establish that the cheque was issued after the expiry of the period of limitation? - HELD THAT:- In the present case, learned counsel for the petitioner has not been able to state as to what would be the starting point of the period of limitation. No meaningful argument has been raised by the learned counsel for the petitioner and even as per his argument, it is not clear as to what was the last date of repayment. In the present case, the legal notice and the other relevant documents have not even been produced on record. The Hon'ble Supreme Court as well as Delhi High Court have observed that the presumption of service of notice would arise when address mentioned in the statutory notice is correct. It is not even argued by learned counsel for the petitioner that address on the legal notice was not correct. At any rate, the said issue would be one of a disputed question of fact and on this basis, the present petition under Section 482 Cr.P.C. cannot be allowed and the same point can be agitated before the trial Court after the evidence have been led. Thus, the second argument of learned counsel for the petitioner also stands rejected. Petition dismissed.
|