TMI Blog2022 (9) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. There can be no dispute that question as regards limitation is a mixed question of law and facts particularly when there could be an issue of extension of limitation. As such, inherent powers of High Court can not be invoked for quashing of complaint at the threshold on grounds which would require evidence to be led. Section 18 of Limitation Act 1963 leaves no manner of doubt that it is only if an acknowledgment of liability or debt is made during subsistence of limitation for filing suit that fresh period of limitation will be computed from date of such acknowledgment - Section 25(3) of the Indian Contract resuscitates a time-barred remedy to enforce payment by way of suit, consequent upon a promise made by debtor to pay off the debt or liablity. In such a case, where the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by 'Explanation' to Section 138 of the Act. While considering acknowledgement or promise, another important aspect would be as regards the quality and kind of evidence required to establish such acknowledgement or promise. Hon'ble the Supreme Court, in Shapoor Freedom M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been agreed upon and finally on 6.7.2018, a cheque bearing No. 015973 dated 6.7.2018 drawn on Union Bank of India, Karnal, for an amount of ₹ 25 lacs was issued by accused from bank account No. 309201010035144, but the same upon its presentation, was returned back upaid with the remarks account closed vide memo dated 18.7.2018. The complainant, thereafter, issued requisite notice and since no payment was made by the accused despite the said notice, the complainant instituted the complaint against the accused. 3. The complainant led preliminary evidence on the basis of which the accused were summoned by learned Judicial Magistrate First Class, Hisar vide order dated 13.11.2019 (Annexure P-3). 4. The learned counsel for the petitioner assails the complaint dated 26.9.2018 (Annexure P-2) as well as the summoning order dated 13.11.2019 (Annexure P-3) mainly on the following grounds :- (i) that the loan having been advanced in the year 2011, the recovery of the same became time barred after 3 years and that since the cheque in question i.e. cheque dated 6.7.2018 was issued after more than 6 years of advancement of loan, the same can not be said to have been issued fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no legally enforceable debt or liability against the accused. The case before the High Court was not of such a nature which could have persuaded the High Court to draw such a definite conclusion at this stage. Whether the debt was time barred or not can be decided only after the evidence is adduced, it being a mixed question of law and fact. (emphasis supplied) 7. A complaint, though expected to state all such facts which attract criminal liability of accused, need not be encyclopaedic so as to include all the finer details and evidence which would be required to substantiate the allegations. It would be at appropriate stage that evidence would be led to substantiate allegations. There can be no dispute that question as regards limitation is a mixed question of law and facts particularly when there could be an issue of extension of limitation. As such, inherent powers of High Court can not be invoked for quashing of complaint at the threshold on grounds which would require evidence to be led. 8. Before proceeding further, it is apposite to bear in mind the provisions of Section 138 of the Negotiable Instruments Act, which read as under :- 138. Dishonour of cheque f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod for its return or as to whether it was an open ended loan. The relevant averments made in the complaint in this regard are reproduced hereinunder :- 2. That the accused persons were having family relations with the complainant and they approached the complainant and requested the complainant to advance ₹ 25 Lacs to them because were in dire need of money. The complainant keeping in view the family relations and dire need of the accused, transferred Rs. 5,00,000/- through HDFC Bank and ₹ 20,00,000/- through Bank of India, on 14.12.2011 in the account of the accused. The accused assured that they will pay the interest @12 % per annum till return of principal amount. 3. That the accused paid the interest as agreed upon and finally on 06.07.2018 for discharging of an existing outstanding and legally enforceable above stated liability, the accused in favour of the complainant, issued a cheque bearing no. 015973 dated 6.7.2018 for ₹ 25,00,000/- drawn on Union Bank of India, Karnal from their account no. 309201010035144. 10. A perusal of the aforesaid averments would indicate that the loan amount was to carry an interest @ 12% till return of the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promise to pay a debt barred by limitation law. An agreement made without consideration is void, unless (1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized 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. In any of these cases, such an agreement is a contract. Explanation 1. Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made. Explanation 2. An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances such remedy may get a fresh lease of life. Section 25(3) of the Indian Contract resuscitates a time-barred remedy to enforce payment by way of suit, consequent upon a promise made by debtor to pay off the debt or liablity. In such a case, where the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by 'Explanation' to Section 138 of the Act. 16. A Division Bench of Kerala High Court in Dr. K.K. Ramakrishnan v. Dr. K.K. Parthasarthy, 2003(3) RCR(Criminal) 711 (DB) , while considering the question as regards enforceability of liability upon dishonour of a cheque held as under: 9. The primary question that arises for consideration is - Does the delivery of a cheque in favour of a drawee not create a legally enforceable liability ? 10 to 14 x x x x x 15. For the purpose of the present case, it does not appear to be necessary to go into this matter in detail. It may, however, be mentioned that under Section 25(3), a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the said promise/liability is thus perfectly within the sweep of Section 138. 18. This Court, in a recent case Sultan Singh vs. Tej Partap 2022(1) RCR (Criminal) 712, dealt with, in detail, an identical matter wherein the following issue were formulated for adjudication: i) 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? ii) In case, answer to the first question is in favour of the person in whose favour the cheque has been issued, then would the said promise, by itself, create any legally enforceable debt , as stated in section 138 of the Negotiable Instruments Act, 1881? iii) Whether in the facts and circumstances of the present case, the present petition under section 482 CrPC, 1973 would be maintainable? iv) 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? 19. While referring to case law extensively, issue no. (i) and (ii), as reproduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Tulsiram (AIR 1981 Delhi 165) (supra) and also of the Madras High Court in the case of N.E. Ethirajulu Naidu v. K.R. Chinnakrishnan Chettiyar, (AIR 1975 Madras 333). 23. And last, but not the least, Section 29(1) of the Limitation Act specifically provides that nothing in the Limitation Act shall affect Section 25 of the Contract Act. Section 29(1) of the Limitation Act is reproduced hereinbelow: 29. Savings - (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). 24. The provisions of Section 25 of Contract Act having been insulated, its application in appropriate circumstances will have the effect of renewing limitation. 25. In view of judgment of this Court in Sultan Singh's case (supra), wherein the issue in hand has been dealt with directly and also in light of judgment of Division Bench of Kerala High Court in K.K.Ramakrishnan's case(supra) coupled with Supreme Court's judgement in Shapoor Freedom Mazda's case(supra), the judgments of Delhi High Court pressed into service on behalf of petitioner i.e. Prajan Kumar Jain's case (supra) and Vijay Polymers's case(supra) do not hold an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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