Point of Law : Hon’ble Supreme Court observed that, Section 139 of N.I. Act, includes a presumption that there exists a legally enforceable debt or liability, which is a rebuttal one.

ORDER :

1. The present application is filed under Section 482 of Code of Criminal Procedure, 1973, [“Cr.P.C.”] seeking quashing of proceedings in C.C. No. 344 of 2012 on the file of Judicial Magistrate of First Class, Macherla, Guntur District.

2. The 2nd Respondent herein filed a private complaint against the Petitioner/Accused for an offence punishable under Section 138 of Negotiable Instruments Act. The allegations in the complaint, are as under:

(i) Both, the complainant and the accused are close friends and there were money transactions between them since 2008. It is said that, accused used to borrow money from the complainant as and when he is in need of it.

(ii) On 07.05.2008 and 15.05.2008, the accused is said to have received a sum of Rs. 10,00,000/- on both dates from the complainant agreeing to pay the same with interest @ 24% per annum. The said amount was paid by way of cheques through his account at HDFC Bank, Kukatpalli Branch, Hyderabad. Subsequent thereto, there were some transactions between the accused and the complainant. On 27.06.2012, the complainant found the total amount due by the accused was about Rs. 25,75,000/- and with a view to discharge the same, a cheque bearing No. 629816 came to be issued, which was drawn on Syndicate Bank, Snehapuri Colony, Borabonda, Hyderabad, in favour of the complainant. Though the accused represented the account was having sufficient funds to honour the cheque, but when presented, the cheque was dishonoured on the ground of “insufficient funds.”

(iii) On 03.09.2012, the complainant again presented the said cheque in his account at HDFC Bank, Macherla Branch and the bank authorities forwarded the cheque to the accused bank for collection, which was returned due to “stop payment instructions” given by the accused.

(iv) A legal notice came to be issued on 21.09.2012 demanding repayment of the amount due, which was served on 24.09.2012. Later on, the present complaint came to be filed on 31.10.2012, which was taken on file as C.C. No. 344 of 2012 on the file of Judicial Magistrate of First Class, Macherla, Guntur District. Challenging the same, the present application is filed seeking quashing of proceedings only on the ground that since the debt is time barred, proceedings under Section 138 of Negotiable Instruments Act, cannot be continued.

3. In other words, the argument of Sri. P. Nagendra Reddy, learned Counsel for the Petitioner is that the accused borrowed Rs. 20,00,000/- in the year 2008 and the repayment period of three years expired in the year 2011. When the complainant cannot enforce the said liability as it is “time barred”, entertaining a complaint filed under Section 138 of Negotiable Instruments Act, is bad in law. He relied upon the judgments of this Court in A. Yesubabu vs. D. Appala Swamy and Another, 2003 (2) ALD (Crl.) 707 (AP), Padala Veera Venkata Satyanarayana Reddy vs. State of A.P. 2019 (1) ALT (Crl) 394 (S.B.) and unreported Judgment of another learned Single Judge in Gerard Kollian vs. M/s. Weis Electronics and Industrial Services (P) Limited, Secunderabad and Another, Crl. Appeal No. 1255 of 2008, dated 03.06.2014 in support of his plea.

4. On the other hand, learned Counsel appearing for the Respondent No. 2-Sri. Srikanth Reddy Ambati, opposed the same contending that in view of the subsequent judgment of the Hon’ble Supreme Court in A.V. Murthy vs. B.S. Nagabasavanna, (2002) 2 SCC 642 and the recent judgment in S. Natarajan vs. Sama Dharman and Another, (2021) 6 SCC 413 the criminal petition has to be dismissed.

5. The point that arises for consideration is, whether an application under Section 482 Cr.P.C. can be entertained to quash a complaint on the ground that debt is “time barred” or in other words, whether the accused can be prosecuted for dishonour of cheque under Section 138 of the Negotiable Instruments Act, when there is no subsisting debt?

6. In A. Yesubabu [cited supra] the learned Single Judge of this Court in paragraphs Nos. 10, 11, and 12