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Issue for consideration:High Court if justified in quashing the criminal proceedings filedby appellant against respondent No.2-accused u/ss.138 and 142of the Negotiable Instruments Act, 1881 holding that it was a fitcase for quashing since the complaint filed seeking prosecutionwas not in respect of a legally recoverable debt.Negotiable Instruments Act, 1881 – Debt if legally enforceable– Exercise of power u/s. 482, CrPC – Scope:Held: Whether the debt in question is a legally enforceable debtor other liability would arise on the facts and circumstance ofeach case and in that light, the question as to whether the poweru/s.482, CrPC is to be exercised or not will also arise in the factsof such case – In the present case, High Court misdirected itselfin holding that since the date of issuance of the cheque (2017) isbeyond three years from the date of issuance of the promissorynote (2012) so it is a time-barred debt – When the respondenthad agreed to repay the amount within December, 2016, thecause of action to initiate proceedings to recover the said amountif not paid within December 2016 would arise only in the monthof December, 2016 – Thus, the limitation would be as providedunder Article 34 to the Schedule in the Limitation Act, 1963 – Inrespect of a promissory note payable at a fixed time, the period oflimitation being three years would begin to run when the fixed timeexpires – Therefore, the time would begin to run from the monthof December, 2016 and the period of limitation would expire at theend of three years thereto i.e. during December, 2019 – Thus, thecheque dated 28.04.2017 is well within the period of limitation –Complaint in CC No.681 of 2017 was filed on 11.07.2017, as isthe case in all the analogous complaints – Therefore, not only theamount was a legally recoverable debt, the complaint was alsofiled within time – No occasion to exercise power u/s.482, CrPCto quash the complaint – Order impugned set aside – Code ofCriminal Procedure, 1973 – s.482 – Contract Act, 1872 – s.25(3)– Limitation Act, 1963 – Article 34. [Paras 12, 13, 15-17]Negotiable Instruments Act, 1881 – Debt/liability if barred bylimitation, to be decided on evidence – Quashing u/s.482,CrPC justified only if debt is non-recoverable:Held: Whether the debt or liability is barred by limitation is to bedecided based on the evidence to be adduced since the questionof limitation is a mixed question of law and fact – It is only in caseswherein an amount which is out and out non-recoverable, towardswhich a cheque is issued, dishonoured and for recovery of whicha criminal action is initiated, the question of threshold jurisdictionwill arise – In such cases, the Court exercising jurisdiction u/s.482,CrPC will be justified in interfering but not otherwise – Entertaininga petition u/s.482, CrPC to quash the proceedings at the stageearlier to the evidence would not be justified – Code of CriminalProcedure, 1973 – s.482. [Para 10]Negotiable Instruments Act, 1881 – s.139 – Plea that if thecheque is issued in respect of the debt which is not enforceableor a liability which cannot be recovered, in such event, thepresumption u/s.139 would not be available:Held: No need to tread that path to undertake an academic exerciseon that aspect of the matter, since on facts ex facie the claim madein the complaint before the Trial Court based on the cheque whichwas dishonoured cannot be construed as time-barred – Thus, itcannot be classified as a debt which was not legally recoverable– Contract Act, 1872 – s.25(3) – Code of Criminal Procedure,1973 – s.482. [Para 12] |
