IMPORTANT POINT
Dishonour of cheque – When a cheque is issued towards a time-barred debt and is dishonoured, liability under Section 138 of N.I. Act squarely arises.

JUDGMENT

Reportable

These revision petitions arise from the following:

(i) Three revision petitions have been filed by the petitioner Ratiram Yadav whereby the accused Gopal Sharma has been acquitted of the charge under Section 138 of the Negotiable Instruments Act (in short “N.I. Act”).

(ii) One revision has been filed by accused Gopal Sharma against his conviction under Section 138 of the “N.I. Act”.

(iii) One revision petition has been filed by complainant Ratiram Yadav against reduction of sentence.

2. Since all the revisions are between the same parties and pertain to transaction of same nature containing common question of law, hence all are being disposed of by this common judgment.

3. The complainant–petitioner Ratiram Yadav filed four distinct complaints under Section 138 of the “N.I. Act” regarding cheque Nos. 132424, 132425, 132426 and 132427 drawn on State Bank of Bikaner and Jaipur, Murlipura Branch, Jaipur, bearing date of year 2013 and issued by accused Gopal Sharma for Rs.1,25,000/- each. All the cheques were dishonoured on presentation for the reason “insufficient funds”. Despite service of legal notice, the accused failed to make payment, compelling the complainant to file the above complaints.

4. After cognizance was taken, the accused appeared before the trial court. The substance of the offence was explained to him, to which he pleaded not guilty and claimed trial. Upon closure of complainant’s evidence, the accused was examined under Section 313 Cr.P.C. He denied all incriminating circumstances and claimed that a cheque had been given to the complainant merely as security, which was allegedly misused. No defence evidence was adduced.

5. After appreciation of relevant law, the trial court convicted the accused in all cases but in appeal, the learned appellate court convicted the accused in one case with reduced sentence and acquitted in rest three cases. Hence these revision petitions.

6. Heard the rival contentions of the parties and perused the record.

7. Learned counsel for the complainant-petitioner has argued that the appellate court while acquitting the accused has passed the judgment without due application of mind. He argued that the acquittal was based solely on the ground that the alleged loan was time-barred and there was no acknowledgment to pay the timebarred debt holding that there was no legally enforceable debt. However, the appellate court failed to consider the legal position under Section 25(3) of the Indian Contract Act, 1872, which provides that a promise, made in writing and signed by the debtor, to pay a time-barred debt constitutes a valid and enforceable contract. A cheque issued towards repayment of a time-barred debt falls within this scope. Therefore, the acquittal on the above basis by the appellate court is not sustainable in law, and the accused is liable for conviction with enhanced punishment.

8. Learned counsel for the complainant petitioner further argued that although the loan transaction was not disputed, rather it is admitted by the accused that he had voluntarily signed and delivered the cheques. Thus under Section 139 of “N.I. Act” a presumption arose that cheques were issued for discharge of liability and the accused has failed to adduce any cogent evidence to rebut the said presumption. He again contended that fact of undated cheques was admitted by the accused and subsequent filling of the dates does not invalidate the instrument. Consequently, revisions filed by the complainant deserve to be allowed.

9. Learned counsel for the complainant placed reliance upon the following judgments:—

(i) Sampelly Satanarayana Rao Vs. Indian Renewable Energy Dvelopment Agency Ltd., (2016) 10 SCC 458;

(ii) Goa Plast (P) Ltd. Vs. Chico Ursula D-souza, (2004) 2 SCC 235;

(iii) Indus Airways Pvt. Ltd. & ors. Vs. Magnum Aviation Pvt. Ltd. & Anr., (2014) 12 SCC 539;

(iv) Anil Kumar Sawhney Vs. Gulshan Rai; (1993) 4 SCC 424;

(v) Sunil Todi Vs. the State of Gujarat, Cr. App