G.REVATHI vs P.K.GANESHWAR - 2022 Supreme(Online)(MAD) 30081

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2022 Supreme(Online)(MAD) 30081

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 26.09.2022 Pronounced on 27.10.2022 CORAM THE HON'BLE Ms. JUSTICE R.N.MANJULA Crl.O.P.No.1221 of 2021 and Crl.MP.Nos.746 & 747 of 2021 G.Revathi ... Petitioner/Accused Vs.
P.K.Ganeshwar, Proprietor of Shri Ganesa Textiles, rep. by his Power of Attorney, Ramesh. ... Respondent/Complainant Prayer:- This Criminal Revision Petition filed under Section 482 of Cr.P.C., praying to call for records in STC.No.337 of 2020 pending on the file of the learned Judicial Magistrate, Palladam, quash all further proceedings in the said case in STC.No.337 of 2020.
For Petitioner : Mr.R.Baskar For Respondent : Mr. Rajarathinam for Mr.A.Thiayarajan

O R D E R

This Criminal Original Petition has been preferred to call for the records in S.T.C.No.337 of 2020 on the file of the learned Judicial Magistrate, Palladam and quash the same.

2.The petitioner is the accused in a private complaint filed by the respondent against the petitioner for the offence under Section 138 of the Negotiable Instrument Act.

3.The learned counsel for the petitioner submitted that the impugned cheque on which the complaint has been filed by the respondent was barred by limitation and hence, it is not for any debt or legally enforceable liability as defined under Section 138 of the Negotiable Instrument Act; as per Section 25(3) of the Indian Contract Act, the agreement without consideration is void unless it is written and registered; on the date of issuance of the cheque, there was no legally enforceable debt or liability or drawing the cheque cannot amount to an acknowledgement of time barred debt; it has been held in number of cases that the complainant cannot take any action under Section 138 of the Negotiable Instrument Act unless there is any legally enforceable debt; even according to the case of the complainant for the loan advanced on 19.12.2013 the cheque is alleged to have been issued on 24.06.2020 after a period of 6 ½ years; so it is clearly a time barred debt and it is not legally enforceable.

3.1. In respect of the above contention the learned counsel for the petitioner submitted the following judgements:

Sl. No	Citations submitted by the petitioner's counsel	Reported in
1	M.P.Farook Vs. K.Sasikumar	judgement made in A.No.4088 of 2017 & A.No.750 of 2017 in CS.No.75 of 2017 and Crl.OP.No.13939 & 13940 of 2016 & 15581 of 2017 dated16.12.2019
2	M.Danabal Vs.R.SenthilRajan	Order made in Crl.RC.No.492 of 2014 dated 12.09.2019
3	K.Kumaravel Vs. R.P.Rathinam	2010(3) MWN (Cr.)DCC 121
4	Sama Dharman Proprietor and another Vs.S.Natarajan	2012 SCC Online Mad 2776
5	S.Natarajan Vs. Sama Dharman	2014(9) Scale 3
6	Rajendra Finance Vs. S.Alosius Thairiyanatham	2005(2) R.C.R.(criminal) 382
7	S.Kamatchi & others Vs.M/s.Arkaa Medicament	2009(3) MWN (Cr.)DCC 31

Sl. No	Citations submitted by the petitioner's counsel	Reported in
8	Sujies Benefits Fund Ltd Vs. H.Sultan	2016 ACD 195 : 2016 ALL MR(Cri) 222
9	Joseph and Devassia	2001 Cri LJ 24
10	Sasseriyil Joseph Vs. Devassia	S.L.P.(Cri)No.1785/2001
11	Neptune Inflatables Ltd Vs. Industrial Venture Captial Ltd	2019 SCC OnLine Mad 16642
12	Jage Ram Karan Singh & another Vs. State & another 2019 SCC OnLine Del	9486
13	The Bidar Urban Cooperative, Bank Ltd, Hyderabad Vs. Girsh	Judgement of the Hon'ble High Court Karnataka in Crl.A.No.200057/2016 dated 17.12.2020
14	M/s.National Agricultural Cooperative Marketing Federation of India (NAFED) Vs. M/s.Disha Impex (PVT) Ltd., and another.	Judgement of the Hon'ble High Court Karnataka in Crl.A.No.1072 of 2013 dated 06.01.2021
15	Shree Daneshwari Traders Vs. Sanjay Jain and another	(2019) 16 SCC 83
16	J.C.Budhraja Vs. Chairman, Orissa Mining Corp. Ltd and another	(2008) 2 SCC 444
17	A.V.Murthy Vs. B.S.Nagabasavanna	(2002) 2 SCC 642
18	A.R.M.Nizmathuallah Vs. Vaduganathan	2007 (5) CTC 488
19	P.Mohanraj & others Vs. Shah Brothers Ispat Pvt Ltd	2021(1) MWN (Cr.) DCC 97(SC)

4. Per Contra, the learned counsel for the respondent submitted that the signature of the executant is not disputed; there is a presumption in favour of the holder of the cheque that the cheque was issued for legally enforceable debt and the fact whether the cheque was issued for a legally enforceable debt or not is a question of fact and that can be proved only during the trial; despite there are mixed questions of law and fact the petitioner has filed this petition in a prematured manner and to quash the same; the Hon'ble Supreme Court has held clearly that under Section 25 (3) of the Act a promise made in writing and authorized to pay wholly or in part of time barred debt, it

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