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.

ORDER :

(DINESH KUMAR PALIWAL, J.)

This petition under Section 482 of Cr.P.C. has been filed for quashment of complaint case number S.C.N.I.A./3912/2019 (Sachin Vs. Dheeraj) registered under Section 138 of Negotiable Instruments Act, 1881 (in short hereinafter referred to as “the Act of 1881”) against the petitioner filed on behalf of respondent Sachin Jain.

2. Respondent filed a complaint under Section 138 of the Act of 1881 against the petitioner arraigning him as accused with an averment that he borrowed Rs.5,60,000/- from him on various dates between a period from 31.10.2014 to 03.04.2015. He made entries of the aforesaid amount in a diary. When complainant was in need of money, he asked the accused to return the money. The petitioner assured respondent to return the amount soon and in that regard he issued a cheque of an amount of Rs.5,60,000/- dated 02.03.2019 of Corporation Bank, Branch Gopal Ganj, Sagar bearing cheque No.227345. The cheque issued by the petitioner was presented by the respondent in his State Bank account Gujarati Bajar Branch, Sagar on 20.03.2019, but the same was dishonored on account of funds insufficient. Eventually, a notice under Section 138 of the Act of 1881 was sent through his Advocate to the accused on 27.03.2019 which was received by the accused petitioner on 30.03.2019 but he failed to deposit the requisite payment. He by reply dated 15.04.2019 refuse to pay the cheque amount. Hence, the complaint has been filed.

3. Learned Judicial Magistrate First Class, Sagar registered a case and issued summons to the accused petitioner. Hence, this petition under Section 482 of Cr.P.C. has been filed for quashment of the said complaint case.

4. The contention of learned counsel for the petitioner is that as per averments of the complaint, money was given to the petitioner/accused for a period from 31.10.2014 to 03.04.2015, while cheque has been issued on 02.09.2019 i.e. almost after four years of taking of the loan. Since the claim is time barred, no offence has been committed by the petitioner even if the cheque is dishonored. To buttress his argument, learned counsel for the petitioner has placed reliance upon the coordinate bench decision rendered in Arvind Kumar Vs. Punjab National Bank , reported in 2014(1) M.P.H.T. 58 and upon single bench decision of Andhra Pradesh High Court in Girdhari Lal Rathi Vs. P.T.V. Ranianujachari & Another, reported in 1997 2 Crimes (HC) 658, Kishanchand L. Thakur Vs. Narayan L. Ruparel and Anr., reported in 2009 Cri.L.J. (NOC) 474(BOM.). In the aforesaid decisions it is held that when debt is not legally enforceable compmlaint uner section 138 of the Act of 1881 is not maintainable as Section 138 of the Act of 1881 is applicable to any debt or other liability which would mean that debt or liability which is legally recoverable. In a case where claim has become time barred, provisions under Section 138 of the Act of 1881 cannot be triggered and recovery would be time barred. Thus, on the basis of aforesaid he has prayed for quashment of the complaint.

5. On the other hand, learned counsel appearing for the complainant submits that legality of the enforceable debt or time barred debt is a disputed question of fact and it cannot be gone into within the jurisdiction under Section 482 of Cr.P.C. It is contended that since the petitioner has admitted his signatures on the cheque, the presumption under Section 139 of the NI Act needs to be drawn until and unless he proves to the contrary that the enforced date does not exist and till the petitioner is not entitled to get the present proceedings quashed. Therefore, it is prayed that powers under Section 482 of Cr.P.C. is not required to be e