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2022 (9) TMI 613 - Indian Laws
Dishonor of Cheque - discharge of legally enforceable debt or not - whether the petitioner issued the cheque in question towards the discharge of legally enforceable liability or debt which is an essential ingredient for invoking section 138 of the Negotiable Instrument Act, 1881? - time barred debt or not - HELD THAT:- The legal issue pertaining to the liability of accused under section 138 of the Negotiable Instruments Act, 1881 in time barred debt was considered and discussed by different High Courts. The Kerala High Court in Sasseriyil Joseph V Devassia [2000 (9) TMI 1081 - KERALA HIGH COURT] considered the question whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under Section 138 of the Negotiable Instruments Act, 1881.
It is appearing from perusal of complaint that the respondent no 2 entered into Assured Return Agreements (Mark ‘A’ and ‘Mark’) with the petitioner and Jasween Sandhu on 16th September, 2011 and all transactions took place between the petitioner and the Jasween Sandhu in years 2011 as reflected from documents Ex. CW1/B1-B4 and as such whatever was due towards the respondent no 2 from the petitioner and Jasween Sandhu was in year 2011 - The accused cannot be prosecuted for offence under section 138 of the Negotiable Instruments Act, 1881 for issuance of cheque for time barred liability or debt.
In the present case, the respondent no 2 in complaint admitted that the petitioner incurred liability towards the respondent no 2 in year 2011 but cheque in question was issued in year 2017 which clearly reflects that the cheque in question was issued towards discharge of time barred liability.
The impugned order cannot be legally sustained qua the petitioner and as such the petition is allowed and impugned order is set aside qua the petitioner - Petition allowed.