such a transaction, can be held to be "a legally
enforceable debt" and can be permitted to be enforced, by institution of
proceedings ... debt was a legally
recoverable debt, the liability to repay unaccounted cash amount could not
be said to be a legally enforceable liability within
payment of portion of loan by mortgage
would not constitute a debt enforceable against the mortgagee. Mr.
Naik further relying upon the ratio laid down ... such, the same would not
constitute any enforceable debt as per the provisions of Section 58
of the Transfer of Property Act. It is further
time barred, it is no more a legally enforceable debt or other
liability as required under Section 138 of the Negotiable Instruments ... debt or
liability. Once it is held that a cheque drawn for
discharge of a time barred debt creates a promise which
becomes enforceable contract
Negotiable Instruments Act because it was not
for consideration of legally enforceable debt.
5. Trial conducted. After appreciating the evidence led by the
parties, trial ... probable defence which may create doubts
about existence of legally enforceable debt or liability, then only case
of the complainant can fail, otherwise
Instruments Act as if the cheque has been issued for legally enforceable debt. But, the courts below have failed to consider the legal proposition that ... cheques in question should be given in connection with legally enforceable debt. In the instant case, as mentioned earlier, no acceptable evidence is available
said loan
amount i.e., 20.05.2011 to discharge his legally enforceable debt
2
C.C.NO.14783/2012
had issued in favour of the complainant ... complainant has proved that, the accused to
discharge his legally enforceable debt had issued in his favour a
post dated Cheque bearing No.079895 dated
under Section 138 can be enforced only when
the cheque is issued in discharge of any legally enforceable
debt or other liability, partly or wholly ... enforced only when the cheque is issued in discharge of
any legally enforceable debt or other liability, partly or wholly.
Where a cheque is issued
failed to prove that the cheque was issued
towards legally enforceable debt or liability.
4. The trial Court, after considering the evidence led and
submissions ... debt or other liability.
The explanation to section 138 makes it clear that "debt or other liability"
means legally enforceable debt or other
taken any loan from the complainant and no
legally enforceable debt existed at the time of issuance of cheques to
the complainant, and
The accused ... procedural requirements of section
138 are:
There is a legally enforceable debt.
The drawer of the cheque issued the cheque to satisfy part or whole
that the complainant when reasonably proves the
legally existing and legally enforceable debt, it
is for the respondent to dislodge the same ... this section, 'debt or other
liability' means a legally
enforceable debt or other liability.
139. Presumption in favour of
holder. -It shall
