Madras High Court
A.R.M.Nizmathuallah vs Vaduganathan on 9 August, 2007
Equivalent citations: 2008 CRI. L. J. 880, (2008) 62 ALLINDCAS 864 (MAD), 2008 (2) ALL LJ NOC 565, 2008 (3) ABR (NOC) 523 (MAD), (2008) 1 CIVILCOURTC 490, (2007) 2 MADLW(CRI) 1153, (2007) 2 MAD LJ(CRI) 1691, (2008) 2 CURCRIR 167, (2008) 1 RECCRIR 181, (2008) 2 BANKCAS 234, (2008) 1 RECCIVR 157, (2008) 1 ALLCRILR 794, (2007) 3 BANKCLR 640, (2007) 5 CTC 488 (MAD)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/08/2007 CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM CRL.OP.(MD) No.22472 of 2004 and Crl.MP.No.7181 of 2004 A.R.M.Nizmathuallah .. Petitioner Accused Vs Vaduganathan .. Respondent Complainant Petition filed under section 482 of Cr.P.C., to call for the entire records in C.C.No.28 of 2004 on the file of the learned Judicial Magistrate No.I, Tirunelveli, Tirunelveli District and quash the same. !For Petitioner ... Mr.R.Anand,Advocate ^For Respondent ... Mr.G.Prabu Rajadurai, Advocate :ORDER
The petitioner seeks to quash the proceedings pending against him in C.C.No.28 of 2004 on the file of the learned Judicial Magistrate No.I, Tirunelveli, Tirunelveli District filed by the respondent herein against the petitioner for the offence under section 138 of the Negotiable Instruments Act.
2.The learned counsel for the petitioner submitted that to attract section 138 of the Negotiable Instruments Act, the cheque in question must have been issued for the legally enforceable debt or other liability. The case of the complainant itself is that the amount was borrowed by the accused in the year 1997 and the date of the cheque is 20.11.2003 and as such, the cheque in this case is not issued for the legally enforceable debt. The debt was time barred. Therefore, the entire prosecution under section 138 of the Negotiable Instruments Act is not maintainable.
3.The learned counsel for the respondent submitted that though the debt was barred by limitation, by issuing a cheque dated 20.11.2003, the accused/petitioner had entered into an agreement and thereby promising to pay the debt barred by limitation of law. Such an agreement is a valid contract as per section 25 of the Indian Contract Act, 1872.[Herein after referred to as "The Act"].
4.This Court considered the rival submissions made by both parties.
5.The explanation under section 138 of the Negotiable Instruments Act reads as follows:
"138: Explanation: For the purpose of this section, "debt or other liability", means a legally enforceable debt or other liability."
6.Now, the question is whether the debt is legally enforceable one or not. In the complaint the date of the accused borrowing the amount or the date of the Promissory Note is not mentioned. But, it is stated in the complaint that on 02.12.1998, the accused had given an acknowledgment letter to the complainant by accepting his liability and promising him to repay the same along with the interest. So, on that basis, from 02.12.1998, the period of limitation of three years expires on 01.12.2001. Even according to the complaint, the debt is barred by limitation.
7.Section 25 and section 25(3) of the Contract Act reads as follows:
"25.Agreement without consideration, void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. - An agreement made without consideration is void, unless-
(1)......
(2)......
(3)it is 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 of 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 inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.
Illustrations:
(a).......
(b).......
(c).......
(d).......
(e)A owes Rs.1,000/- but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs.500/- on account of the debt. This is a contract."
8.In view of section 25(3) of the Act, when a debt has become barred by limitation, a written promise to pay, furnishes a fresh cause of action. Section 25(3) of the Act in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation under section 138 of the Act. In view of the illustration (e), the cheque becomes a promise made in writing, to pay under section 25(3) of the Act.
9.When a similar question arose, it was answered by the Division Bench of Kerala High Court reported in 2005 STPL (DC) 82 KER [DR.K.K.RAMAKRISHNAN Vs. DR.K.K.PARTHSARADHY], wherein, it is held in paragraph 26 that:
"26. .... It is held that:
(1)When a person issues a cheque, he acknowledges his liability to pay.
In the even of the cheque being dishonoured on account of insufficiency of funds he will not be entitled to claim that the debt had become barred by limitation and that the liability was not thus legally enforceable. He would be liable for penalty in case the charge is proved against him."
10.In view of the above consideration, the proceedings against the petitioner/accused cannot be quashed. Anyhow, as per the explanation (2) of Section 25 of the Act, it is for the Trial Court to decide whether the consent of the promisor was freely given, i.e., whether the cheque was actually given voluntarily by the petitioner/accused to the respondent/complainant herein after the period of limitation or any other fact remains.
11.With the above observations, the criminal original petition is dismissed.
ap To
1.The Judicial Magistrate No.I, Tirunelveli, Tirunelveli District.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.