Madras High Court
Sekar S vs K.Mariasamy on 14 September, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.301 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 14.09.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.301 of 2016
Sekar S. .. Petitioner
Vs.
K.Mariasamy ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to call for the records in
C.A.No.85 of 2013 dated 25.01.2016, on the file of the learned XVI
Additional Sessions judge, Chennai and confirming the order/judgment
passed in C.C.No.216 of 2012, dated 26.03.2013 on the file of the
learned VIII Metropolitan Magistrate, George Town, Chennai and set
aside the same.
For Petitioner : Mr.K.G.Senthil Kumar
For Respondent : Mr.N.S.Suganthan
Government Advocate (Crl.Side)
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.301 of 2016
ORDER
This Criminal Revision Case is filed against the concurrent findings of the Courts below in a private complaint initiated under Section 138 of Negotiable Instruments Act.
2. The case of the complainant is that he and the petitioner herein are known to each other and for his family expenses, the petitioner borrowed a sum of Rs.2,00,000/- and promised to repay it within six months with interest at the rate of 24% per annum. However, he was evading repayment in spite of repeated requests. At last he has given four cheques bearing Nos.789420 dated 20.08.2011, 789419 dated 27.08.2011, 789418 dated 03.09.2011 and 789417 dated 10.09.2011 for Rs.50,000/- each. When the cheques were presented for collection, it were returned with an endorsement "Insufficient Funds". On receipt of the return memo, statutory notice was caused to the petitioner on 13.12.2011 and it was received by the petitioner on 16.12.2011. But he failed to reply. Hence the complaint.
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3. The respondent/complainant has examined his Power of Attorney, Janarthanan as PW.1 and the complainant himself has mounted the witness box as PW.2. 11 Exhibits were marked in support of his complaint.
4. The petitioner has resisted the claim on the ground that the complaint is hopelessly barred by limitation. The cheques dated 20.08.2011, 27.08.2011, 03.09.2011 and 10.03.2011 are the cheques given for the time barred debt. Under Section 25 of the Contracts Act, a promise made without consideration is void. The cheque given is only a promise to pay a time barred debt, so it cannot be equated with acknowledgment of a time barred debt to save the period of limitation prescribed. Therefore, the complaint has to be dismissed.
5. However, the trial Court taking note of the fact that the petitioner/accused has given undertaking letter dated 30.06.2011 marked as Ex.P.10 and deed dated 12.07.2011 marked as Ex.P11 which is an acknowledgment of debt, therefore, under Section 25(3) of the Contracts 3/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 Act, the promise made in writing and signed by the person to pay the debt of which might have enforced by the creditor for payment but for the law limitation. It may be an agreement without consideration, though it is saved from the rigor of Section 25(1) which say agreement made without consideration is void, since there is written acknowledgment of the debt
6. While holding so, the trial Court convicted the petitioner/accused to undergo 6 months Simple Imprisonment and pay a compensation of Rs.2,00,000/- within one month. Aggrieved by the said conviction and sentence, C.A.No.85 of 2013 was preferred by the petitioner/accused before the XVI Additional City Civil Court, Chennai. The lower appellate Court on re-appreciation of law and the evidence has confirmed the judgment of the trial Court.
7. In this revision case, the learned counsel for the petitioner/accused reinforcing the defence of limitation, circulated a judgment of this Court rendered in Sama Dharman Vs. Natarajan 4/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 reported in 2012-2- L.W. ( Crl.) 516. According to the learned counsel for the petitioner, in the cross examination of PW.2, the complainant admits that the loan of Rs.2,00,000/- was given to the petitioner during the month of February 2007. After receiving the loan, no payment was made by the accused and thereafter, he gave the letters – Ex.P10 and Ex.P11 and the four cheques which is the subject matter of the complaint. While the complainant himself admitted that for the loan availed in the month of February 2007, the subject cheques dated 20.08.2011, 27.08.2011, 03.09.2011 and 10.03.2011 were given ex facie for a time barred debt. Complaint under Section 138 of N.I.Act is maintainable only they are given the debt is legally enforceable. Since the complainant himself has admitted that the cheques in the year 2011 were given for the debt incurred in the year 2007, the Courts below ought to have properly appreciated the evidence and law of limitation and should have dismissed the complaint.
8. The learned counsel for the respondent /complainant per contra would submit that the Courts below have rightly considered the 5/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 letter acknowledging the debt and subsequent promise to pay the debt which were marked as Ex.P10 and Ex.P11. Even the judgment of this Court relied by the petitioner distinguish the promise to pay the time barred debt and acknowledgment to pay the time barred debt. In the instant case, before issuance of cheques, the accused has also acknowledged the debt in writing. Therefore, the judgment cited by the petitioner is not applicable to the facts of the case.
9. Heard the learned counsels and perused the records. The short point involved in this revision is whether the four cheques which are the subject matter of the complaint issued for discharge of legally enforceable debt or a promise for a time barred debt?
10. This Court in Sama Dharman case cited supra in Paragraph 14 and 15 has explained the differences between the expressions “acknowledgment of the debt” and “promise” in the following words:
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https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 “14.The distinction between an acknowledgment under Section 18 Limitation Act of 1983 and a 'promise' within the meaning of Section 25(3) of the Contract Act is of great importance. Both an acknowledgment and a promise are required to be in writing, signed by the party or his agent authorized in that behalf; and both have the effect of creating a fresh starting point of limitation. But while an acknowledgment under the Limitation Act is required to be made before the expiration of the period of limitation, a promise under Section 25(3) to pay a debt may be made after the limitation period. Further promise to pay must be in writing in order to be enforceable.
15. As pointed out earlier, the learned counsel appearing for the respondent/complainant has taken umbrage under Section 25(3) of the Indian Contract Act, 1872. It has already been pointed out that for the purpose of invoking the said Section, there must be a distinct promise in writing. In the instant case, such a promise has not been made by the petitioners/accused and therefore, it is 7/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 needless to say that the respondent/complainant is not entitled to invoke Section 25(3) of the said Act.”
11. The Courts below have rightly considered Section 25 and 25(3) of the Indian Contracts Act and has held that the subject cheques are not merely a promise to pay the time barred debt, but the cheques were issued after the written acknowledgment of the time barred debt. The documents are marked as Ex.P10 and Ex.P11.
12. This Court on considering the fact and the clarification of this Court in the Sama Dharman case holds that the finding of the Courts below is legally and factually sustainable, there is no error either in appreciation of evidence or the law.
13. The learned counsel for the petitioner states that pending revision the petitioner has paid Rs.70,000/- and therefore, there may be consideration regarding sentence.
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14. Taking note of the above fact, this Court modifies the sentence to the effect that the petitioner to pay a sum of Rs.1,30,000/- within a period of one month from today as compensation, in default shall undergo Simple Imprisonment for a period of three months.
15. With the above modification, this Criminal Revision Case is partly allowed.
14.09.2022 Internet : Yes/No Index: Yes/No rpl To
1. The XVI Additional Sessions judge, Chennai.
2. The VIII Metropolitan Magistrate, George Town, Chennai 9/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.301 of 2016 Dr.G.JAYACHANDRAN, J.
rpl Crl.R.C.No.301 of 2016 14.09.2022 10/10 https://www.mhc.tn.gov.in/judis