Question Whether Cheque Was Issued For A Time Barred Debt Or Not Cannot Be Decided In A Petition Under Section 482 CrPC : Supreme Court

The Supreme Court observed that the question whether the cheque in question had been issued for a time barred debt or not cannot be decided in a petition under Section 482 CrPC.

The bench of Justices S. Abdul Nazeer and J B Pardiwala observed that this question is a matter of evidence.

In this case, the Punjab and Haryana High Court quashed a complaint under Section 138 of Negotiable Instrument Acts on the ground that on the date of summoning the accused the legally enforceable debt was time barred. The High Court observed that there is no averment in the entire complaint as regards any kind of acknowledgment of the said debt by the accused within the period of three years i.e. within the limitation period of recovering the debt.

In appeal, the Apex Court bench noted the loan was advanced sometime in the year 2011 and the cheque in question issued by the accused for the discharge of the debt is dated 01.11.2018 and complaint for the offence under Section 138 of the N.I. Act was lodged on 14.01.2019.

"It appears that the High Court has gone by the date of the loan transaction to be precise the year of the loan transaction. If a cheque is issued on 01.11.2018 for the discharge of the debt incurred in the year 2011 then prima facie it could be said to be an acknowledgement of the debt. This aspect needs to be re-considered by the High Court in its true perspective."

The court also disagreed with the view that the acknowledgement of the debt at the instance of the accused should have been within three years from the date of transaction and there is no averment in the complaint in this regard.

"We fail to understand such a line of reasoning by the High Court. We say so because the loan which was advanced of Rs. Five Lakh by the complainant to the accused was for a period of seven years. Prima facie, it appears that the liability towards repayment of the loan was to be discharged within a period of seven years. If that be so, then on what basis the initial first three years have been taken into consideration by the High Court for the purpose of counting the limitation. Perhaps what is in the mind of the High Court is that by the time, the cheque in question was issued the debt had become barred by limitation because no acknowledgement was obtained before the expiry of three years from the date of loan. However, as noted above, the understanding was to discharge the liability within a period of seven years. Prima facie, we are of the view that the period of limitation would start reckoning from the expiry of the period of seven years.", the bench said. 

The court also noted that the complainant was not heard while disposing of the Section 482 CrPC petition by the High Court. While allowing the appeal by remitting the matter to High Court for fresh consideration, the court further observed:

"Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 resply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC."

Case details

Yogesh Jain vs Sumesh Chadha | 2022 LiveLaw (SC) 879 | CrA 1760-1761 OF 2022 | 10 October 2022 | Justices S. Abdul Nazeer and JB Pardiwala

Headnotes

Negotiable Instruments Act, 1881 ; Sections 118,138, 139 - Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 resply of the N.I. Act.

Code of Criminal Procedure, 1973 ; Section 482 - Negotiable Instruments Act, 1881 ; Sections 138,139 - Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC. 

 Click here to Read/Download Order