The main legal point established in the judgment is that the issuance of a cheque for repayment of a time-barred debt creates a legally enforceable liability under Section 138 of the Negotiable Instruments Act.

JUDGMENT

Gurvinder Singh Gill, J. - The petitioner seeks quashing of complaint dated 26.9.2018 (Annexure P-2) as well as order dated 13.11.2019 (Annexure P-3) vide which he has been ordered to be summoned so as to face trial for offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act').

2. The respondent/complainant Kala Mandir Sarees and Jewellers, through its proprietor Smt. Madhu Bala, instituted a complaint against SGM Steel Private Limited and its Directors Sumit Singla (petitioner) and Tina Singla wherein it is alleged that the complainant, upon being requested by the accused to advance loan, had transferred an amount of Rs. 25 lacs by way of two different bank transactions made on 14.12.2011, as the complainant was having family relations with the accused. It is alleged that the accused had assured that interest on the said amount @ 12% per annum would be paid till return of the principal amount. It has specifically been stated therein that the accused had been paying interest, as had been agreed upon and finally on 6.7.2018, a cheque bearing No. 015973 dated 6.7.2018 drawn on Union Bank of India, Karnal, for an amount of Rs. 25 lacs was issued by accused from bank account No. 309201010035144, but the same upon its presentation, was returned back upaid with the remarks 'account closed' vide memo dated 18.7.2018. The complainant, thereafter, issued requisite notice and since no payment was made by the accused despite the said notice, the complainant instituted the complaint against the accused.

3. The complainant led preliminary evidence on the basis of which the accused were summoned by learned Judicial Magistrate First Class, Hisar vide order dated 13.11.2019 (Annexure P-3).

4. The learned counsel for the petitioner assails the complaint dated 26.9.2018 (Annexure P-2) as well as the summoning order dated 13.11.2019 (Annexure P-3) mainly on the following grounds :-

(i) that the loan having been advanced in the year 2011, the recovery of the same became time barred after 3 years and that since the cheque in question i.e. cheque dated 6.7.2018 was issued after more than 6 years of advancement of loan, the same can not be said to have been issued for discharge of a 'legally enforceable liability' so as to attract provisions of Section 138 of the Act;

(ii) that the words 'legally enforceable' as existing in explanation to Section 138 of the Act have to be interpreted in context of availability of civil remedy for recovery of debt etc. and that too subject to rules of limitation;

(iii) that mere issuance of cheque cannot be treated to be an 'acknowledgment' of debt in terms of Section 18 of Limitation Act 1963, so as to extend limitation for recovery of debt and that, in any case, since even the cheque had been issued beyond three years of taking loan, the complainant can not even plead 'acknowledgment' of debt as Section 18 of Limitation Act, specifically prescribes that 'acknowledgment', if any, has to be made before expiry of prescribed limitation, which in the instant case expired much before issuance of cheque.

5. The learned counsel, in order to hammer forth his aforesaid submissions, places reliance upon two judgements of Delhi High Court i.e. Prajan Kumar Jain vs. Ravi Malhotra 2009(21) RCR(Criminal) 141 and M/s Vijay Polymers Pvt. Ltd. vs. M/s Vinnay Aggarwal 2010(5) RCR(Criminal) 728.

The learned counsel has further submitted that co-ordinate Benches are already seized of the legal issue in hand inasmuch as notice of motion has been issued in identical matters i.e. CRM-M-34658-2022 and CRM-M- 31440-2022.

6. I have heard the learned counsel for the petitioner. Since the petitioner has raised an issue as regards his liability in respect of the dishonoured cheque, it needs to be mentioned at the outset that Section 118 and 139 of the Act, embody some presumptions in favour of holder of cheque particularly as regards existance of debt or liability. However, needless to mention such presum