Vipin Kumar v. Kuldeep), under Section
Case Details
Neutral Citation No. - 2024:AHC:187128 Court No. - 79 Case :- APPLICATION U/S 482 No. - 17871 of 2024 Applicant :- Kuldeep Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Devid Kumar Singh,Prateek Rai,Satya Prakash Rai Counsel for Opposite Party :- G.A. Hon'ble Arun Kumar Singh Deshwal,J.
Legal Reasoning
1. Heard Sri Prateek Rai, learned counsel for the applicant and Sri Sandeep Chaudhary, learned A.G.A. for the State. 2. The instant application has been filed seeking quashing of the entire proceeding of complaint case No. 24413 of 2023 (Vipin Kumar vs. Kuldeep), under Section 138 N.I. Act, pending before A.C.J.M., Court No.3, Meerut. 3. Contention of learned counsel for the applicant is that the cheque in question was issued on 8.9.2023 in discharge of the loan given by opposite party No.2 on 8.6.2017, therefore, the cheque in question, issued in discharge of liability, was itself time barred because as per the Entry 19 of Part II of the Schedule of the Limitation Act, 1963, the suit for recovery of loan can be executed within three years from the date of delivery of loan. Second contention of the learned counsel is that the cheque in question was stolen, regarding which the applicant had made a police complaint dated 12.9.2023 and subsequently F.I.R. dated 21.11.2023 was also lodged. It is lastly submitted that the impugned proceeding is bad in the eyes of law and deserves to be quashed. 4. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Kerala High Court in Sasserilyil Joseph vs. Devassia; 2001 CRILJ 24 in which it is observed that if the time barred debt was not acknowledged within a period of three years then the same will become time barred, hence cannot be legally enforceable. Learned counsel for the applicants states that an S.L.P. was filed against the aforesaid judgement before the Apex Court being S.L.P. (Criminal) No. 1785 of 2021 which was dismissed by the Apex Court. 5. Per contra, learned A.G.A. states that whether the cheque in question issued was time barred or not is a disputed question of fact which can be decided during trial. It is further submitted that whether the cheque has been stolen or given by the applicant is also a disputed question of fact, hence the same is defence of the applicant that can be taken during trial. 6. After hearing the submissions of learned counsel for the parties and on perusal of the record, it appears that though it is mentioned in the complaint that the loan of Rs. 13 Lakh was given 8.6.2017, subsequently despite the acknowledgement and promise to pay the loan, the applicant did not pay the loan and finally the cheque in question was handed over to the opposite party No.2 on 8.9.2023. 7. As per Section 18 of the Limitation Act, before expiry of three years if there is any acknowledgement of loan in writing, then fresh period of limitation will start and whether the loan in question was acknowledged by writing or not that is a disputed question of evidence that can be decided during trial because time barred debt can be legally enforceable if the same has been acknowledged before expiry of three years. Therefore, contention of learned counsel for the applicant that the cheque in question was issued in discharge of the debt which itself is time barred is a question of evidence that can be considered during trial. 8. Hon'ble Apex Court in the case of A.V. Murthy vs. B.S. Nagabasavanna; (2002) 2 SCC 642 has observed that time barred debt is not completely barred from being enforced under the law and same can be enforced if before expiry of limitation the debt has been acknowledge. Paragraphs No. 5 & 6 of the A.V. Murthy (supra) is quoted as under:- "5. As the complaint has been rejected at the threshold, we do not propose to express any opinion on this question as the matter is yet to be agitated by the parties. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, 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, is a valid contract. Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31-3-1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgment and the creditor might have a fresh period of limitation from the date on which the acknowledgment was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent. 6. This is not a case where the cheque was drawn in respect of a debt or liability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous." 9. Similarly, in the recent judgement of S. Natarajan vs. Sama Dharman and another; (2021) 6 SCC 413, Hon'ble Apex Court has observed that in cheque bouncing cases, the initial presumption incorporated in Section 139 N.I. Act favours complainant and the accused can rebut that presumption by adducing evidence during trial and plea of time barred debt is a mis-question of law and fact can be examined only during trial. Paragraphs No. 8, 9, 10 of S. Natarajan (supra) is quoted as under:- "8. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna [A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642] where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the reasons "account closed". The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under sub-section (3) of Section 25 of the Contract Act, a 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, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet, it may amount to acknowledgment and the creditor might have a fresh period of limitation from the date on which the acknowledgment was made. After highlighting further facts of the case, this Court held that at this stage of proceedings, to say that the cheque drawn by the accused was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous. In the circumstances, this Court set aside the order passed by the High Court upholding the Sessions Court's order quashing the entire proceedings on the ground that the debt or liability is barred by limitation and, hence, the complaint was not maintainable. It is, therefore, clear that the contention urged by the appellant herein can be examined only during trial since it involves examination of facts. 9. In Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] , the legal question before this Court pertained to the proper interpretation of Section 139 of the NI Act which shifts the burden of proof on to the accused in cheque bouncing cases. This Court observed that the presumption mandated by Section 139 of the NI Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. This Court further observed that Section 139 of the NI Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. This Court clarified that the reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. This Court, then, explained the manner in which this statutory presumption can be rebutted. Thus, in cheque bouncing cases, the initial presumption incorporated in Section 139 of the NI Act favours the complainant and the accused can rebut the said presumption and discharge the reverse onus by adducing evidence. 10. In our opinion, therefore, the High Court could not have quashed the proceedings on the ground that at the time of issuance of cheque, the debt had become time- barred and therefore, the complaint was not maintainable. The High Court, therefore, fell into a grave error in quashing the proceedings." 10. So far as the contention of counsel for the applicant that the cheque in question was stolen, regarding which a police complaint and subsequently an F.I.R. was lodged is concerned, from the perusal of the record, it appears that the complaint as well as the F.I.R. were lodged subsequent to the bouncing of the cheque which itself is a matter of evidence.
Decision
11. In view of the above, this Court finds that the pleadings raised by the applicant are his defences and mixed question of fact and law that can be considered during trial and cannot be a ground to quash the impugned proceeding. 12. Accordingly, the application is dismissed. Order Date :- 27.11.2024 Vandana