Murthy Vs. B.S. Nagabasavanna  Insc 69 (8 February 2002)
Sethi & K.G. Balakrishnan K.G. Balakrishnan, J.
appeal is directed against the order passed by a learned Single Judge of the
High Court of Karnataka. The appellant herein filed a complaint before the
Magistrate alleging that the respondent herein had committed an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881 [for
short, "the Act"]. The appellant alleged that he and his two friends
had advanced a sum of Rs.7.5 lakhs to the respondent about four years back to
enable him to start a petrol pump and that the respondent did not pay back the
said amount despite repeated demands and finally at the request of the
appellant, on 30.3.1998 the respondent issued a cheque in favour of the
appellant. The appellant presented the cheque for payment, but the cheque was dishonoured
by the bank for the reason "Account closed". Thereafter, the
appellant issued a statutory demand notice and as the respondent failed to pay
the amount, a complaint was filed before the Magistrate by the appellant. In
the complaint, it was alleged that the appellant and his two friends advanced
the said sum of Rs. 7.5 lakhs to the respondent about four years prior to the
date of issue of the cheque by the respondent. The learned Magistrate issued
summons to the respondent. The respondent filed a Criminal Revision before the IInd
Addl. Sessions Judge, Mysore, alleging that the complaint was not maintainable
as the amount advanced by the appellant to him was about four years prior to
the date of issue of the cheque, and in view of the 'Explanation' appended to
Section 138 of the Act, there was no legally enforceable debt or liability as
against the respondent. The Addl. Sessions Judge accepted this plea and held
that even on the basis of the averments in the complaint and the sworn
statement of the complainant, the alleged borrowing was four years prior to the
issuance of the cheque and hence that debt was not legally enforceable in view
of the bar of limitation and, therefore, the Magistrate was in error in taking
cognizance of the alleged offence under Section 138 of the Act. As a result,
the Addl. Sessions Judge quashed the entire proceedings and aggrieved thereby,
the appellant filed a Criminal Revision before the High Court of Karnataka but
the learned Single Judge upheld the view of the Addl.
Judge. The appeal has now come up before us.
heard learned counsel for the appellant. Learned counsel contended that it was
incorrect on the part of the Sessions Judge to hold that there was no legally
enforceable debt or liability on the part of the respondent. He also contended
that when a cheque is issued, under Section 118 of the Act, it has to be
presumed that it was drawn for consideration. It was further contended that
even though the appellant and his friends advanced the loan about four years
back, the respondent had acknowledged this liability in his balance sheet and
that even for the purpose of a civil suit, such debt or liability is not barred
respondent refused to accept notice and we did not have the advantage of
hearing him. The respondent seems to have contended that as the loan was
advanced four years prior to the issuance of the cheque, the debt or the
liability for which the cheque was drawn by him had ceased to be legally
enforceable and, therefore, no complaint could have been filed by the
complainant under Section 138 of the Act.
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.
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.
in the instant, 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 31st
March 1997 is also
produced before us. If the amount borrowed by the respondent is shown in the
balance sheet, it may amount to acknowledgement and the creditor might have a
fresh period of limitation from the date on which the acknowledgement was made.
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.
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.
we set aside the order passed by the learned Single Judge of the High Court,
allow this appeal and remand the matter to the Magistrate to proceed with the
complaint in accordance with law. We make it clear that whatever has been
stated by us regarding enforceability of the debt or liability is for the
purpose of these proceedings and the respondent would be at liberty to set up
all legally available defences.
will be no order as to costs.
R.P. Sethi ] ..J [ K.G. Balakrishnan ] February 8, 2002.