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2008(1) Bankmann 497 (Del.)
DELHI HIGH COURT
Shiv Narayan Dhingra, J.
Shyam Gopal Gupta —Appellant
versus
Sanjeev Bhargava —Respondent
Criminal L.P. No. 86 of 2004 & Crl. A. No. 659 of 2007
Decided on 22.10.2007
For the Appellant:Mr. Rakesh Sherwat and Mr. Rampal Tokas, Advocates.
For the Respondent:Mr. Akshya Kumar Sharma, Advocate.
IMPORTANT POINT
Legally enforceable debt or liability implies that debt or liability was recoverable through court of law and there was no bar under law to recovery.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Acquittal by trial Court on finding that debt for which cheques were issued was not a legally recoverable debt—Appeal—Complainant-tenant had given cheque amount as loan which was to be repaid at the time of vacation of premises—Clause in agreement provided that complainant was to give one month’s notice before presenting the cheque—Cheque in given facts and circumstances could not be said to be not for a legally recoverable debt or liability—Complainant-tenant had vacated premises—Notice in writing could not be said a legal requirement and complainant had waited for five months before presenting the cheque—Respondent was liable to be convicted. (Paras 4 and 5)
Result: Appeal allowed.
Shiv Narayan Dhinga, J.—Criminal L.P. No. 86 of 2004
Leave to appeal granted for the reasons stated in the application. The leave petition stands disposed.
Criminal Appeal No. 659/2007 (to be numbered)
1. The instant appeal has been preferred against the judgment dated 31st May, 2004 passed by the learned Metropolitan Magistrate whereby he acquitted the accused for offences under Section 138 of Negotiable Instruments Act ( in short “the N.I. Act”).
2. Brief facts relevant for the purpose of deciding this appeal are that two cheques issued by the respondent to the complainant, each for a sum of Rs. 1,00,000, got dishonoured for reasons of “account closed”. A legal notice of demand was sent to the accused but no payment was made. The complainant-appellant thereafter filed a complaint under Section 138 of the NI Act. The respondent admitted receipt of loan and execution of documents of loan and issuance of cheques. He, however denied the receipt of notice of demand as also his liability to pay the cheque amount. The complainant was the tenant of the respondent. The respondent alleged that the complainant was to hand over the possession of tenanted premises as a pre-condition but was still in possession of the premises. The other ground was that he was to give prior intimation and a notice to him before presenting these two cheques which was not done.
3. The learned trial Court gave a finding that a valid notice of demand was served upon the respondent accused. There was no necessity of sending an intimation to the accused before presenting the cheques. Section 138 was attracted even where cheques are dishonoured due to account being closed and the cheques were valid cheques. However, the learned trial Court held that the debt for which these cheques were issued was not a legally recoverable debt on the ground that there was an agreement entered into between accused and the complainant. This agreement was a loan agreement and was proved as Ex. CW1/A. There was a clause 5, which prescribed that the complainant was required to issue one month’s notice to the accused who thereafter would return the loan amount and in case of his failure to return the loan amount, the complainant can take steps for recovery (by presenting the cheques to the bank). The trial Court observed that in terms of the agreement, the complainant had not issued one month’s prior notice to the accused before presenting the cheques, so the complainant violated the terms and conditions of the agreement and thus by presenting cheques, complainant had taken advantage of his own wrongs. The learned trial Court also observed that in view of the explanation provided in Section 138 of NI Act, it was not sufficient that there was a debt or liability but it must be legally enforceable. Though there was a debt and liability existing even on the date of presentation of cheques, but it could not be legally enforceable due to Clause 5 of the agreement which required a particular procedure to be followed in order to enforce it. Trial court, therefore, dismissed the complaint.
4. The view taken by the learned Trial Court is contrary to law. A loan given to a person becomes legally recoverable when it is not paid. There is no legal or mandatory requirement that in order to recover a loan from a person, a person has to serve a notice and then only a person can recover loan. A loan can be demanded orally. In the instant case, there is evidence to show that the tenant had given this amount of loan to the landlord during his tenancy and the loan amount was to be paid back to the tenant on tenant’s vacating the premises. It has also come in evidence that the tenant had vacated the said premises and had also obtained no due certificate from different authorities and sent it to the landlord before presenting the cheque. In fact, he waited for five months for the landlord to pay back the loan amount of Rs. 2,00,000 and when, despite his sending no due certificates and handing over
