TMI Blog2012 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque in question that is, on 01.02.2011, all the debts mentioned in the complaint have become time barred and the cheque in question has not been issued in respect of enforceable debt or other liability. Under the said circumstances, the complaint in question under section 138 r/w section 142 of the Act, is not legally maintainable and this Court by invoking inherent powers can very well quash the entire proceeding in C.C. In the instant case, it has already been pointed out that at the time of issuance of cheque that is, on 01.02.2011, the debts alleged to have been received by the petitioners have become time barred. Therefore, viewing from any angle, the contention put forth on the side of the petitioners is really having subsisting force. The learned counsel appearing for the respondent has drawn the attention of the Court to the decision reported in A.R.M. Nizmathullah V. Vaduganathan [ 2007 (8) TMI 808 - MADRAS HIGH COURT] , held that the cheque in question has been issued in view of the fact that the debtor has acknowledged his liability. Under the said circumstances, he should not be entitled to claim that the debt has become barred by limitation. It has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, 04.07.2009 and 11.01.2010. Further in the complaint no date has been mentioned with regard to receipt of ₹ 1,000/-. The cheque in question has been given on 01.02.2011. Therefore, on the date of issuance of the cheque in question, the debts alleged to have been received by the respondents/accused/petitioners have become time barred. 5. Section 138 of the Negotiable Instruments Act, 1881 deals with Dishonour of cheque for insufficiency, etc., of funds in the account. 6. Explanation of Section 138 of the said Act reads as follows: For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 7. Even from a mere reading of the said explanation, it is made clear that the cheque in question must be issued in respect of enforceable debt or other liability. If a cheque in question has been given not in respect of enforceable debt or other liability, Section 138 of the said Act cannot be invoked. 8. It has already been pointed out that as per the averments made in the complaint, the amounts alleged to have been received by the respondents/accused/petitioners have become time barred on the date of issuance of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omisor was legally compellable to do; or unless (3) it is promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. 12. The entire argument advanced on the side of the respondent/complainant is based upon the provision of section 25(3) of the said Act and the same can be vivisected as follows: (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. 13. It is an admitted fact that Section 25(3) of the said Act 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 in part of the same. Further the promise must be in writing either signed by the person concerned or by his duly appointed agent. To put it in short, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified banker and not expressed to be payable otherwise than on demand. 19. A Cheque means a draft signed by the maker or drawer drawn on a bank, payable on demand and unlimited in negotiability. Therefore, it goes without saying that a cheque is not a promise. It is nothing but an instrument which enables a person in whose favour the same has been drawn to draw money mentioned therein from the concerned bank. Therefore, a cheque cannot be equated with a promise. 20. It has already been pointed out that the respondent/complainant cannot take umbrage under section 25(3) of the Indian Contract Act, 1872 and further issuance of cheque in question on 01.02.2011 is not a promise. Therefore, viewing from any angle, on the date of issuance of the cheque in question that is, on 01.02.2011, all the debts mentioned in the complaint have become time barred and the cheque in question has not been issued in respect of enforceable debt or other liability. Under the said circumstances, the complaint in question under section 138 r/w section 142 of the Negotiable Instruments Act, 1881 is not legally maintainable and this Court by invoking inherent powers can very well quash the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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