Delhi District Court
Ms. Rajesh vs . Gyanender Cnr No. Dlsw020056292022 on 2 August, 2023
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MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022
CC No. NI ACT No. 4642/2022
DLSW020056292022
IN THE COURT OF SEEMA NIRMAL, MM (NI ACT) DIGITAL
COURT-02 (SOUTH-WEST), DWARKA COURT, NEW DELHI.
Case No. : CC NI ACT 4642/2022
Instituted on : 03.02.2022
Decided on : 02.08.2023
MS. RAJESH
D/O Shreeram
R/o 403, 4th Floor,
Vivanta Residency, Sector-3,
Dwarka, New Delhi -110073
.....Complainant
Versus
GYANENDER
S/o Ram Mehar,
R/o H. No. 111, Village Bagrola,
New Delhi-110077.
...Accused
Complaint u/s 138 and 142 of the
Negotiable Instruments Act, 1881 as
amended up to date.
Present: Shri R.S. Lathwal, Ld. Counsel for Complainant along
with complainant.
Sh. Ashok Kumar, Ld. Counsel for accused with Accused.
(SEEMA NIRMAL)
MM-02 (Digital Court-02)
South West District,
Dwarka Courts/ND
Digitally signed
by SEEMA
SEEMA NIRMAL
NIRMAL Date:
2023.08.02
14:02:24 +0530
:2:
MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022
CC No. NI ACT No. 4642/2022
J U D G M E N T:
The present complaint under Section 138 and 142 of the Negotiable Instruments Act, 1981 (hereinafter referred to as the NI Act) has been filed by complainant Ms. Rajesh, against accused Gyanender. It has been submitted by the complainant that she and the accused are well known to each other and were in live-in-relationship from last many years and out of their above said relationship a female child namely Vani is born which is under the care and custody of complainant. It is further submitted by the complainant that accused is in business of constructions and in the month of March-2016 accused was in dire need of funds to complete construction work of his building and accused requested the complainant to arrange Rs.11,00,000/- (Rupees Eleven lakhs) from her brother as friendly loan with assurance that he will return the amount within one month as and when it is demanded from him. On believing such representations made by the accused, complainant agreed to arrange funds for the accused and on 02.04.2016 complainant gave the accused Rs.11,00,000/- in cash after taking the same from her brother Raj Singh, who had withdrawn this amount from his bank account No. 177513031024, Dena Bank, Samalkha, District-Panipat, Haryana. It is further submitted by the complainant that brother of complainant Mr. Raj Singh had clearly submitted on 02.04.2016 that he is giving money to (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed SEEMA by SEEMA NIRMAL NIRMAL Date: 2023.08.02 14:02:31 +0530 :3: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 complainant and it is the duty of complainant to return the same as and when it is demanded by him and complainant had given the same money to the accused on same day after reaching home and accused had assured complainant that he will return the amount of Rs.11 lakhs as and when it is demanded and within 30 days of demand made by complainant. It is further submitted by the complainant that out of total loan amount of Rs.11 lakhs accused returned Rs.1,50,000/- to complainant in February, 2018 as per complainant demand and accused further assured the complainant that the remaining amount of Rs.9,50,000/- will also be returned by him as and when same is demanded. It is further submitted by the complainant that in third week of January, 2021 complainant demanded the remaining loan amount of Rs.9,50,000/- from accused as the same was to be returned to her brother but the accused could not arrange the funds taking excuse of ongoing Covid-19 problems but assured complainant that he will return the balance loan amount by mid of October-2021 and to prove his bona fide on 24.01.2021 accused issued a postdated cheque bearing No. 786550 dated 24.10.2021 for an amount of Rs. 9,50,000/- drawn on SBI, Dwarka, Delhi and assured the complainant that the said cheque will be honored on its due date and thereafter the relations between accused and complainant became more strained but as per his assurance complainant presented the cheque before her bankers (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:02:39 +0530 :4: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 i.e. PNB, Kakrola, Delhi on 26.10.2021 but the said cheque was dishonored with remarks of "Funds Insufficient" vide return memo dated 29.10.2021. It is further submitted by the complainant that fact of dishonour of cheque was informed to the accused and accused requested complainant not to take any action and requested the complainant to give him one month time to top up his accounts and assured the complainant that the cheque shall be honoured thereafter. It is further submitted by the complainant that as per the assurance of the accused complainant again presented the said cheque before her bankers i.e. PNB, Kakrola, Delhi but on 09.12.2021 the said cheque was again dishonoured with remarks of "Funds Insufficient" and complainant came to know this fact on 24.12.2021 and complainant informed the fate of the cheque to accused but accused kept on deferring the matter on one or the other excuse and till date he has not returned the money of complainant. Thereafter, complainant served legal notice dated 04.01.2022 sent through Speed Post but the accused had not paid the amount till date. Hence, this complaint.
Therefore, in these circumstances, the accused has rendered himself liable to an offence punishable under Section 138 and 142 of the NI Act and he should be punished for the same.
2. In his pre-summoning evidence, the complainant examined only herself as CW-1 and tendered following documents:
(SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:02:45 +0530 :5: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 1 Mark A : Aadhar Card of the complainant 2 Mark B : Copy of Pass Book of Mr. Raj Singh of DENA Bank 3 Ex.CW-1/3 : Cheque bearing no. 786550 dt.
24.10.2021 for an amount Rs.9,50,000/-
4 Mark -C : Copy of return memo of Punjab National Bank dated 29.10.2021 5 Ex.CW-1/5 : Return memo dated 24.12.2021 6 Ex.CW-1/6 (Colly) : Legal Demand Notice dated 04.01.2022 7 Ex.CW-1/7 : Postal receipt 8 Ex.CW-1/8 : Tracking report
9. Ex. CW-1/9 Certificate U/s 65-B of Indian Evidence Act
3. On the basis of this complaint and after conclusion of pre- summoning evidence, the accused was summoned under Section 138 of the NI Act vide order dated 18.04.2022. After procuring the presence of the accused, notice of accusation was severed upon the accused by the Court of Ld. Predecessor Sh. Vaibhav Kumar, the then Ld. MM (NI Act) Digital Court-02, South West Dwarka Courts, New Delhi on 28.05.2022 and the case was adjourned for cross-examination of the complainant. Thereafter, the complainant closed his evidence.
4. After perusing the deposition of the complainant and witnesses examined by the complainant, incriminating evidence was made out against the accused. Hence, the statement of accused was (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:02:51 +0530 :6: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 recorded to which he pleaded his innocence and false implication and opted to lead his defence evidence.
5. In his defence accused examined himself as DW-1 and DW-2 Deepak Yadav only and thereafter, the accused closed his defence evidence.
6. I have heard learned counsel for the parties and gone through the case file carefully and thoroughly with their assistance. I have gone through the arguments forwarded by both the counsels.
7. Learned counsel for the complainant has argued that in the present case, the evidence adduced by the complainant shows that the offence under Section 138 of the NI Act has been committed by the accused. Cheque ( Ex.CW-1/3) which has been issued by the accused, has been returned as dishonoured. The cheque has been returned as dishonoured on account of "Funds Insufficient" (Return Memos (Mark-C and Ex.CW-1/5) and the legal notice dated 04.01.2022 (Ex.CW-1/6) was sent to the accused apprising him of the dishonour of cheque by the bank, however, he failed to make the payment within 15 days of the receipt of the notice. Thus, the complainant having proved the essential ingredients of the commission of offence punishable under Section 138 of the NI Act and therefore the accused be convicted for the offence under Section 138 of the NI Act. On the other hand, learned counsel for the accused has (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed SEEMA by SEEMA NIRMAL NIRMAL Date: 2023.08.02 14:02:57 +0530 :7: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 argued that no such offence has been committed as the accused has not issued the said cheque to the complainant in discharge of his legal liability and that the same was given to her for the purpose of Glanza car and that he had not taken any money from the complainant. It is, therefore, requested that the accused be acquitted of the notice leveled against him.
8. In the case titled as K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another 1999 AIR (SC) 3762, it has been held by the Hon'ble Supreme Court that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts namely:
1. Drawing of the cheque,
2. Presentation of the cheque to the bank,
3. Returning the cheque unpaid by the drawee bank,
4. Giving notice in writing to the drawer of the cheque demanding payment of cheque amount,
5. Failure of the drawer to make payment within 15 days of the receipt of the notice.
9. In the case titled as Siva Kumar Vs. Nataranjan, 2009(3) CCC 665 (SC) Hon'ble Supreme court has considered the provision which has been appended to Section 138 of the Act and it has been observed as under:
" It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but is another thing to say that dishonour of a (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:03 +0530 :8: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 cheque by itself constitutes an offence: for the purpose of proving its case that the accused has committed an offence under section 138 of the Negotiable Instruments Act, the ingredients there of are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a) (b) and (c) appended to section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of notice the accused at his own peril may refuse to pay the amount. Clauses
(b) and (c) of the proviso to section 138 therefore must be read together.
Issuance of notice would not by itself give rise to a cause of action but communication of the notice would".
10. Further, in Electronics Trade and Technology Development Corporation Ltd., Secunderabad v. Indian Ecologists and Engineers (Electronics) (P) Ltd. and another, 1996 (1) RCR (criminal) 592, it has been held as follows:
"...... the object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:12 +0530 :9: MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amounts to dishonour of cheque and it comes within the meaning of Section 138........".
11. Further, in Goa Plast (P) Ltd. v. Chico Ursula D'Souza, 2004 (1) RCR (criminal) 179, it has been observed as follows:
"the object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques were issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:18 +0530 : 10 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."
12. After perusal of the documentary as well as oral evidence placed on record, this court is of the considered view that the complainant has not been able to successfully prove her case against the accused for the reasons as discussed below:
13. Cheque in question has been admitted by the accused in the answer to the question no.2 of the statement of accused. He has also admitted the return memo in the answer to the question no.2 of the admission and denial of documents.
14. To make any person liable under Section 138 Negotiable Instruments Act (hereinafter to be read as 'The Act'), the following ingredients are required to be proved by the complainant:
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:26 +0530 : 11 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
(SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:35 +0530 : 12 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
15. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears his signatures though denied the fact of filling the details of the same and drawing the same in favour of the complainant in order to discharge any liability. The said proposition has been duly observed by Hon'ble Supreme Court in the case of Bir Singh versus Mukesh Kumar, (2019) 4 SCC 197. The relevant paras are being reproduced hereinafter for ready reference:-
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:48 +0530 : 13 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque.
The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
And further reiterated in Triyambak S Hedge vs Sripad (2021) SCC Online SC 788.
16. After perusal of the record it is found that the debt in present case is a time barred debt. The question whether a time barred debt is a legally enforceable debt U/s 138 NI Act has been dealt with in Sasseriyil Joseph v. Devassia 2001 CriLJ 24, wherein The Hon'ble High Court of Kerala has held as under :-
"6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under S. 138 of the Negotiable Instruments Act. In this case, the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:03:54 +0530 : 14 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgment of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of S. 25(3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from S. 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer. The explanation to S. 138 defines the expression 'debt or other liability' as a legally enforceable debt or other liability. The explanation to S. 138 reads as under:-- "Explanation:-- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability"
7. Thus, S. 138 is attracted only if the cheque is issued for the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:00 +0530 : 15 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 discharge of a legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time- barred debt is a legally enforceable debt. In this connection, it is also relevant to note the decision of the Andhra Pradesh High Court reported in Girdhari Lal Rathi v. P.T.V. Ramanujachari (1997 (2) Crimes 658). It 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 S. 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."
17. Similarly, Hon'ble High Court of Delhi, in M/s. Vijay Polymers Pvt. Ltd. vs M/s. Vinnay Aggarwal, 2009 SCC OnLine Del 1075, has also discussed the law whether a complaint filed under Section 138 of the Negotiable Instruments Act is maintainable in law, if the same is based upon the dishonor of a cheque which was issued in lieu of a debt which was not legally recoverable at the time of issuance of the said cheque. It has been held as under:
"12. A perusal of the aforesaid provision clearly goes to show (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:06 +0530 : 16 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgement, if any, must be there before period of limitation is over, which is not the case.
13. It may also be relevant to take note of the judgment delivered by the Bombay High Court in Smt. Ashwini Satish Bhat Vs. Shri Jeevan Divakar Lolienkar & Another [2000(5) Bom CR 9], wherein also in a similar case when a cheque was dishonoured which issued beyond the period of limitation the appeal filed by the complainant was dismissed. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder:- "3. On the other hand, learned Advocate Shri C.A. Ferreira, appearing for the respondent, submitted before me that the dishonoured cheque in question was not in respect of a legally enforceable debt and in view of Explanation to section 138 of the said Act, the Magistrate has rightly acquitted the respondent on the said count as well as on the ground that there was doubt as to whether the amount mentioned in the said cheque was in the handwriting of the respondent as the defence of the respondent is that he had handed over to the appellant a blank cheque. In support of his submission that the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:12 +0530 : 17 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 dishonoured cheque in question is not in connection with any legally enforceable debt, reliance was placed by him on Girdhari Lal Rathi v. P.T.V. Ramanujachari and another, 1998 Bank J. 127 : 2000 Do Ch. (A.P.)420. He, therefore, submits that there is no case for interference with the acquittal.
4. The complainant, respondent and one Shankar Prabhudessai had entered into partnership vide Partnership Deed Exhibit P.W. 1/D on 24th August 1990. This partnership was dissolved on 13th June 1991 after an agreement was executed between the parties under which the respondent agreed to pay a sum of Rs. 1,53,724 to the appellant/complainant within 12 months and in case he fails to make the said payment during the said period, the said amount was to carry bank interest from the date of the agreement. The case of the complainant further is that the respondent did not pay the amount as agreed under the said Agreement dated 13th June, 1991, but on 19th July, 1996 the respondent issued cheque for Rs. 3,87,500/- and this cheque has bounced.
5. The defence had taken the stand that the dishonoured cheque was not in relation to any legally enforceable debt and, as such, the respondent could not be held guilty under section (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:19 +0530 : 18 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 138 of the said Act. The contention of learned Advocate for the appellant is that this cheque dated 19th July 1996 itself is an acknowledgement of debt and, as such, there is no merit in the submission of the defence that the liability under dishonoured cheque is not on account of legally enforceable debt. Insofar as the dishonoured cheque is concerned, the stand taken by the respondent is that the cheque was not written by him and it is not in his handwriting and that he had, in fact, issued a blank cheque in favour of the appellant for certain purpose. This stand was specifically taken by the respondent in the course of the trial and, as such, it was necessary for the complainant to have sought the opinion of handwriting expert in case her case was that the cheque in question was in the handwriting of the respondent, so as to rebut the theory of blank cheque taken by the respondent. It is in these circumstances that the Magistrate had come to the conclusion that the dishonoured cheque in question cannot be treated as acknowledgement under section 18 of the Limitation Act, since the acknowledgement should be before the period of limitation is over and that it should be in writing. In view of this position, the Magistrate was right in coming to the conclusion that it had not been proved that the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:25 +0530 : 19 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 dishonoured cheque was in relation to a legally enforceable debt or liability in law. The dishonoured cheque admittedly was issued after 5 years of the said Agreement dated 13th June 1991.
6. The ruling upon which reliance has been placed by the learned advocate for the respondent is applicable on all fours. In that case loan was advanced in the year 1985 and the cheque was issued in the year 1990. By the time the cheque was issued, the debt was barred by limitation because no acknowledgement was obtained before the expiry of 3 years from the date of loan. In these circumstances, it was held there that the debt was not legally enforceable at the time of issuance of cheque and the accused could not be punished under section 138 of the said Act. It was further held therein that in case a cheque is issued for time barred debt and it is dishonoured, the accused cannot be convicted under section 138 on the ground that the said debt was not legally recoverable.
7. For the aforesaid reasons, I do not find any merit in this appeal and the appeal is liable to be dismissed. The appeal is accordingly dismissed."
(SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:33 +0530 : 20 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022
14. No contrary judgment has been cited on behalf of the complainant/respondent. Accordingly the petition is allowed..."
18. Hon'ble High Court of Delhi in M/s. Jage Ram Karan Singh & Anr vs State & Anr, 2019 SCC OnLine Del 9486, has summarized the law in this regard. It has been held as under:
"A bare perusal of the aforesaid provision clearly goes on to show that for analyzing the limitation of a liability beyond a period of three years, the acknowledgment, if any, must be there before the period of limitation is over, which is not the case in hand."
19. Sasseriyil Joseph v. Devassia (supra) wherein, in a similar case, it has been held by the Supreme Court that, a cheque which has been issued by the accused for a due which was barred by limitation, the penal provision under Section 138 of the NI Act is not attracted. The relevant observations made in this regard in the aforesaid judgment are reproduced hereunder: -
"We have heard learned counsel for the petitioner. We have perused the judgment of the High Court of Kerala in Criminal Appeal No. 161 of 1994 confirming the judgment/order of acquittal passed by the Addl. Sessions Judge, Thalassery in (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:40 +0530 : 21 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 Criminal Appeal No. 212 of 1992 holding inter alia 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.
"On the facts of the case as available on the records and the clear and unambiguous provision in the explanation to Section 138 of the Negotiable Instruments Act the judgment of the lower appellate Court as confirmed by the High Court is unassailed. Therefore, the special leave petition is dismissed."
20. In Vijay Polymers Pvt. Ltd. & Anr. v. Vinnay Aggarwal (supra), relying upon the judgment of the Supreme Court in Sasseriyil Joseph (supra), it has been observed that, cheques issued for a time-barred debt would not fall within the definition of 'legally enforceable debt', which is the essential requirement for a complaint under Section 138 of the NI Act; the extended meaning of debt or liability has been explained in the Section which means a legally enforceable debt or liability. Useful reference may also be made to the case titled Prajan Kumar Jain v. Ravi Malhotra, 2009 SCC Online Del 3368, wherein, like the case in hand, it has been held by another Coordinate Bench of this Court that, an acknowledgment to be encompassed within the ambit of Section 18 of the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed SEEMA by SEEMA NIRMAL NIRMAL Date: 2023.08.02 14:04:46 +0530 : 22 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act. Relevant portion of the aforesaid judgment is reproduced hereunder:
"10....This acknowledgment even as per the complaint was much after the statutory period of three years which is the prescribed period of limitation for the recovery of an outstanding amount. An acknowledgment to be encompassed within the ambit of Section 18 of the Limitation Act has to be an acknowledgment in writing as also within the prescribed period of limitation. These are the twin requirements which have to be fulfilled in order to be a valid acknowledgment under Section 18 of the Limitation Act which is admittedly not so in the instant case. In this case this acknowledgment to pay the balance amount was in terms of the settlement dated 26.1.2005 i.e. much after the statutory period of three years; it also does not speak of the acknowledgement being in writing. It was thus not a valid acknowledgment."
21. In the present case, it is the case of the complainant that the question i.e. Rs.11,00,000/- was given by her to the accused on dated (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL Date: NIRMAL 2023.08.02 14:04:52 +0530 : 23 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 02.04.2016 and the cheque in question has been issued on dated 24.10.2021.
22. It is the case of the complainant that repayment of the loan amount was to be done as and when the same is demanded. Now, the loan was given on dated 02.04.2016 and the cheque in question has been issued on dated 24.10.2021. Although complainant has alleged that the accused had made a payment of Rs.1,50,000/- in cash in the month of February 2018 but there is no evidence on the file in this regard. In the present situation, the period of limitation, as per Article 19 of the schedule of the limitation Act ,1963, is for the purpose 'money payable on money lent', is the period of 3 years from the date of 'when the loan is made' and as per Article 21 of the schedule of the limitation Act ,1963, is for the purpose ' money lent under an agreement that it shall be payable on demand', is the period of 3 years from the date of 'when the loan is made'. Thus date from which the period of limitation starts running is 02.04.2016 i.e. the date on which loan was made. However, the cheque in question is dated 24.10.2021 which is more than five years after said date of making loan. Therefore, the debt in question had become time barred on the date of issuance of cheque, unless there is some contract in writing regarding the payment of time-barred debt u/s 25 (3) of the Indian Contract Act,1872 or there is some acknowledgment u/s 18 of the (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:04:58 +0530 : 24 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022 Limitation Act,1863 or there is part payment by the accused to the complainant u/s 19 of the Limitation Act before the expiry of the period of limitation.
23. U/s 25 (3) of the Indian contract Act a promise to pay a time barred debt is valid and enforceable debt, if it is made in writing and is signed by the person to be charged therewith. There is no averment in the complaint or the affidavit Ex. CW-1/A regarding any written contract between the parties for payment of the debt in question.
24. It is a well settled principle of law that complainant has to stand on its own leg and prove its case beyond reasonable doubts. It has also been held by Hon'ble Supreme Court in Rahul Builders vs. Arihant Fertilizers and Chemicals and another, (2008) 2 SCC 321 that N.I. Act envisages application of the penal provisions which needs to be construed strictly. Therefore, even if two views in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal liability.
25. Coming back to the facts of the present case, as discussed above the debt was a time barred debt and thus requirements of Section 138 are not fulfilled, accordingly, presumption under Section 139 NI Act is not applicable to the present case.
(SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:05:04 +0530 : 25 : MS. RAJESH VS. GYANENDER CNR No. DLSW020056292022 CC No. NI ACT No. 4642/2022
26. Thus, in these circumstances, offence under Section 138 of the NI Act does not stand proved. Accordingly, accused is hereby held not guilty and acquitted for the offence under Section 138 of the NI Act. Bail bond and surety bond furnished by him before this court during trial stands cancelled and surety stands discharged and he be returned his original document, if any, taken on record for the said purpose. File be consigned to the record room.
Announced in the open court through video conferencing on 02.08.2023 in the presence of the accused. Digitally signed by SEEMA Dated:02.08.2023 SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:05:20 +0530 (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND/02.08.2023 Note:- Certified that this judgment contains 25 pages and each page bears my signatures.
SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2023.08.02 14:05:24 +0530 (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND/02.08.2023 (SEEMA NIRMAL) MM-02 (Digital Court-02) South West District, Dwarka Courts/ND Digitally signed by SEEMA SEEMA NIRMAL NIRMAL Date:
2023.08.02 14:05:11 +0530