TMI Blog2020 (2) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... d the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881 - Appeal allowed by way of remand. - Criminal Appeal No. 904 Of 1998 - - - Dated:- 14-11-2019 - K.R. Shriram, J. N.M. Nadar, and S.V. Marwadi for the Appellant. Ms. Anamika Malhotra for the Respondent. JUDGMENT 1. This is an appeal impugning an order and judgment dated 16.9.1998 passed by the Addl. Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai in a trial for commission of an offence punishable under Section 138 of the Negotiable Instruments Act 1881. 2. The complainant who is the appellant herein was an unpaid vendor. The complainant claims to have supplied various quantities of paints during the period 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30.6.1992, cheque was issued on 15.5.1997 and hence the debt or the liability to the complainant is time barred. And as it is time barred, it is no more a legally enforceable debt or other liability as required under Section 138 of the Negotiable Instruments Act 1881 and hence the complaint was not tenable. The trial Court in view of this legal point raised by the accused, decided to consider whether the debt or the liability in question was legally enforceable and only if the answer to that issue was in the affirmative, felt the need to consider whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881. The trial Court relying on the judgment of a single Judge of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Mr.Nadar submitted that therefore, the impugned judgment has to be set aside and the Court should remand the matter back to the trial Court for hearing the arguments on the issue whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881. Ms.Malhotra, APP also concurred with the submissions made by Mr.Nadar. 7. I have considered the judgment in Dinesh B. Chokshi's case(supra). On the basis of a referral order passed by a learned single Judge, the Hon'ble the Chief Justice passed an administrative order directing that all similar matters should be placed before the Division Bench to decide the two questions viz.:- (i) Does the issuance of a cheque in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On plain reading of Section 13 of the said Act of 1881, a negotiable instrument does contain a promise to pay the amount mentioned therein. The promise is given by the drawer. Under Section 6 of the said Act of 1881, a cheque is a bill of exchange drawn on a specified banker. The drawer of a cheque promises to the person in whose name the cheque is drawn or to whom the cheque is endorsed, that the cheque on its presentation, would yield the amount specified therein. Hence, it will have to be held that a cheque is a promise within the meaning of Sub-section (3) of Section 25 of the Contract Act. What follows is that when a cheque is drawn to pay wholly or in part, a debt which is not enforceable only by reason of bar of limitation, the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. A debt or liability ceases to be legally enforceable after expiry of the period of limitation provided in the law of limitation for filing a suit for recovery of the amount. Thus, a time barred debt by no stretch of imagination can be said to be a legally enforceable debt within the meaning of the explanation to Section 138. 20. While recording our answer to the first Question, we have already held that a cheque issued for discharge of a debt which is barred by law of limitation is itself a promise within the meaning of Sub-section (3) of Section 25 of the Contract Act. A promise is an agreement and such promise which is covered by Section 25(3) of the Contract Act becomes enforceable contract provided that the same is not otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the year 1997. 22 years have since passed. Therefore, registry to return the record proceedings to the trial Court within two weeks. The matter be placed before the trial Court on 5.12.2019 for directions, on which date the complainant and the accused shall without fail, remain present before the trial Court either in person or through their duly authorized Advocate. The trial Court shall hear the matter for arguments and deliver its judgment as early as possible and in any event, on or before 15.2.2020. 11. A copy of this order be sent by the registry to the accused as well as his Advocate Mr.Tushar Joshi. It is the responsibility of Advocate Mr.Tushar Joshi to inform the accused about this order. The appellant is also at liberty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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