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DEEPAK GUPTA
Maharia Automobiles – Appellant
Versus
Anil Kumar – Respondent
JUDGMENT
Deepak Gupta, J.
This application for grant of leave to appeal under Section 378(4) Cr.P.C is directed against the judgment dated 27.11.2014 passed by learned Judicial Magistrate Ist Class, Hisar, whereby complaint No.220- 2/2010 filed by the complainant - M/s Maharia Automobiles (Applicant) seeking prosecution of accused Anil Kumar (now respondent) under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as 'the N.I. Act'), has been dismissed.
2. Leave granted. On direction to the Registry, number CRA-AS- 249-2023 has been assigned.
3. Copy of the trial Court record has been received and perused. It was alleged by the complainant-firm that accused had purchased a Swaraj Tractor from it for consideration of Rs.2,70,000/- on 17.11.2004, to be repaid on instalments basis along with interest @ 1.5% per month in half yearly instalments on or before 17.02.2007. In the meantime, accused was arrested in a criminal case registered against him under Section 302 IPC and was sent to Central Jail, Bhiwani. He assured the complainant firm to repay the loan along with interest on his release from the jail. In February, 2010, accused came out of Central Jail, Bhiw
The nature of the debt must be proven during trial, and there is a presumption in favor of the holder of the cheque.
A cheque issued for a time-barred debt does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, leading to no offence being committed.
The court ruled that a cheque issued to discharge a time-barred debt is not legally enforceable under the Indian Contract Act. A written promise is required to validate such debts.
A cheque issued for a time-barred debt is not legally enforceable under Section 138 of the Negotiable Instruments Act.
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.
Dishonour of cheque – Cheque itself is a promise to pay even if debt is barred by time.
Issuance of a cheque acknowledges a legally enforceable liability, making the drawer liable under Section 138 of the NI Act, even if the debt is time-barred.
A debtor's issuance of a cheque acknowledges a debt; questions of enforceability or time-bar must be determined through evidence, not prior to trial.
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