TMI Blog2022 (9) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - CRL.M.C. 556/2019 & CRL.M.A. 2314/2019 - - - Dated:- 6-9-2022 - HON BLE MR. JUSTICE SUDHIR KUMAR JAIN Petitioner Through: Mr. Sachin Sood and Mr.RipinSood, Advocates. Respondents Through: Mr. Ashok Kumar Garg, APP for State/R1 along with SI Deepak Yadav, PS HauzKhas. Mr. Vivek Sood, Senior Advocate alongwith Mr. Sundeep Sehgal, Mr. Mohd. Kamran and Mr. Akash Godhvani, Advocates for R-2. JUDGMENT 1. The prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 weeks. 4. The petitioner being aggrieved filed the present petition and challenged the impugned order. The petitioner pleaded that the present petition is filed with an ulterior motive to coerce the petitioner to settle the criminal case initiated by her for the offence of cheating stated to be committed by respondent no 2 vide FIR bearing no 734 of 2015 registered at PS Hauz Khas and proceedings under sections 82 and 83 of the Code have already been initiated against the petitioner. There is no legally enforceable liability is due against the petitioner towards the respondent no 2. 4.1 The petitioner at present is residing in USA. The respondent no 2 was introduced with the petitioner by a close family friend namely Harpreet Singh and the respondent no 2 represented himself as sole proprietor of M/s Ace Trading Company and is engaged in the business of development of restaurants and food courts for his clients. The respondent no 2 after winning trust and confidence of the petitioner lured her to invest in the business of restaurant and food court business and the respondent no 2 would be developing food court at Ground Floor of Building No. 8, DLF Cyber City, Phase - I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts had been issued against the petitioner. The complaint did not disclose any cause of action against the petitioner in absence of any legally enforceable debt towards the petitioner. The petitioner handed over cheque in question to the respondent no 2 for development of food court along with the cheque bearing no 329612 dated 21.03.2011. The respondent no 2 was given Rs 15 Lacs in lieu of cheque in question. The respondent no 2 did not return back the cheque in question as having lost the cheque in question and due to this a stop payment request was made by the petitioner to the bank vide communication dated 04.08.2011. 5. The petitioner challenged impugned order on the grounds that the present complainant is perverse and is abuse of process of law and is filed to coerce the petitioner to settle criminal case initiated by her vide FIR bearing no 734/2015 registered at PS Hauz Khas. The complaint does not disclose any debt or liability against the petitioner. There was no occasion for the petitioner to issue the cheque in question to the respondent no 2 in the year 2017 when his whereabouts could not even be traced by the police and non bailable warrant issued against him by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 7. The Supreme Court in the case of Kusum Ingots Alloys Ltd. V Pennar Peterson Securities Ltd. others, (2000) 2 SCC 745 has laid down the following ingredients for taking cognizance under Section 138 of the NI Act:- (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability or debt which is an essential ingredient for invoking section 138 of the Negotiable Instrument Act, 1881. 11. It is necessary to mention facts as narrated in the complaint to decide above legal issue. The respondent no 2 in complaint alleged that he is having rich experience in the property management work and provided consultancy services to the petitioner and her sister Jasween Sandhu i.e. the accused no. 2 who wanted to invest the money. The petitioner had met the respondent no 2 through common friend Annie Manchanda, and sought help of the respondent no 2 in procuring properties in Gurgoan which could yield high rentals and returns to her. The petitioner was also willing to pay charges to the respondent no 2 for his services. The petitioner had availed services and expertise of the respondent no 2 with respect to sale and purchase of various properties for herself and her sister, Jasween Sandhu (accused no. 2) and started to get excellent returns on the investment. The petitioner also made the respondent no 2 to undertake massive renovation work in the property bearing no D-8/4, Ground Floor DLF, Phase-V, Gurgoan for which the petitioner and Jasween Sandhu in tota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Negotiable Instruments Act simply on the ground that the debt was not legally recoverable. I am fully in agreement with the view expressed by the learned Judge in the decision referred to above. The Judgment rendered by Kerala High Court in Sasseriyil Joseph's case was challenged before the Supreme Court in Special Leave to Appeal (Crl.) No.1785/2001 which was decided by the Supreme Court vide Judgment dated:10-09-2001 and view of Kerala High Court was affirmed by holding that the cheque in question having been issued by the accused for due which was barred by limitation the penal provision under Section 138 of the Negotiable Instruments Act is not attracted in the case. 13. In Vijay Polymers Pvt. Ltd. another V M/s Vinnay Aggarwal decided by another Coordinate Bench of this court, issue for consideration waswhether the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 was not maintainable in law in as much as same was based upon the dishonour of a cheque which was issued by ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheques were given to the complainant in good faith in furtherance of bona fide intent and the accused always intended to repay which can be determined during the trial. 14. The Punjab Haryana High Court in Sultan Singh V Tej Partap, 2022(1) RCR (Criminal) 712 deliberated issue whether 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 and would the said promise, by itself, create any legally enforceable debt , as stated in section 138 of the Negotiable Instruments Act, 1881. The court after considering the relevant provisions as well as the judgments of various Courts on held 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 India Contract Act, 1872 and the said promise by itself would create a legally enforceable debt or liability, as contemplated by section 138 of the Negotiable Instruments Act. The court also referred Shapoor Freedom Mazda V Durga Prosad Chamaria, AIR 1961 SC 1236 wherein the Supreme Court while discussing ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich cheque was issued, there is no acknowledgement on behalf of either the petitioner or Jasween Sandhu within meaning of section 18 of the Limitation Act, 1963. The language of section 138 of the Negotiable Instruments Act, 1881 is clear and does not mandate any other interpretation except what is clear mentioned in the section. The proviso attached to section 138 clearly laid down that debt or other liability means a legally enforceable debt or other liability. I am in agreement with the view taken by Coordinate Benches of this court, Kerala High Court, Bombay High Court and High Court of Karnataka. 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. 17. The trial court took cognizance vide impugned order. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) reads as under:- Cognizance of offences by Magistrates.- 1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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