9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 173 - HC - Indian LawsDishonour of Cheque - legally enforceable debt or liability - statutory presumption in terms of Sections 118 and 139 of the NI Act - time barred debt - HELD THAT - It is evident that issuance of a cheque on a time barred debt is enforceable in terms of Section 25(3) of the Indian Contract Act and such debt is legally enforceable debt within the meaning of Section 138 of the NI Act. In the present case, according to the evidence of PW.1 he has paid Rs.3 Lakhs on 22.07.2009 by way of cheque and Rs.1,50,000/- by way of cash as on the date of issuance of cheque on 02.04.2013, it was barred by time. The fact alleged by complainant in the complaint that he has paid Rs.4,50,000/- as hand loan to the accused in the month of June 2012. The said statement is further reiterated in the demand notice - Ex.P3. However, the evidence of PW.1 in examination-in- chief itself as referred above in paragraph Nos.2 and 3 of the affidavit evidence would stand contrary to the pleading in complaint regarding giving hand loan of Rs.4,50,000/- to the accused. Complainant has also failed to establish the nexus between payment of Rs.3 Lakhs by way of cheque on 22.07.2009 - Ex.P6 to the transaction covered under cheque - Ex.P1. Complainant in the cross- examination has given again totally different version that he has given money of Rs.4,50,000/- in three installments to the accused. However, to evidence the said fact there are no any documents or requisite evidence to prove the said fact. The said circumstance would create serious doubt in the claim of complainant that accused has issued cheque in question - Ex.P1 for lawful discharge of debt. It is in the evidence of DW.1 regarding complainant taking advance of Rs.70,000/- for sale of open space belongs to his father-in-law. The documents at Exs.D2 to D7 would go to show that accused and her husband is known to complainant and there are transaction between complainant and accused. Further, accused was also surety for the loan transaction of complainant in the Society. The deposit of Rs.3 Lakhs by way of cheque shown in Ex.P6 is dated 22.07.2009 would go to show that there was earlier transaction of complainant with accused. Complainant has failed to establish the nexus of the said transaction evidence from Ex.P6 with the transaction covered under cheque - Ex.P1. Therefore, the possibility of complainant coming in possession of the cheque of accused with respect to any earlier transaction cannot be totally ruled out. The Trial Court has rightly appreciated the oral and documentary evidence placed on record in holding that the complainant has failed to prove that accused has issued the cheque in question - Ex.P1 for lawful discharge of debt. The said findings recorded by the Trial Court is based on the material placed on record and the same does not call for any interference by this Court. Appeal dismissed.
Issues Involved:
1. Whether the impugned judgment under appeal passed by Trial Court for the offence punishable under Section 138 of N.I. Act is perverse, capricious and legally not sustainable? 2. Whether interference of this Court is required? Summary: Issue 1: Legality and Sustainability of the Trial Court Judgment The appellant/complainant contended that the accused had taken a hand loan of Rs.4,50,000/- and issued a cheque for repayment, which was dishonored. The complainant complied with all legal requirements under Section 138 of the N.I. Act, including issuing a demand notice and filing a complaint within the stipulated time. The statutory presumption in favor of the complainant was supported by judgments from the Hon'ble Apex Court, which established that once the issuance of a cheque and the signature are admitted, a legally enforceable debt is presumed. The accused argued that the demand notice was not served, there was no loan transaction, and the complainant lacked the financial capacity to lend the amount. The court found the demand notice was deemed served based on postal endorsements and precedents from the Hon'ble Apex Court. The accused did not reply to the demand notice or disclose her defense before cross-examining PW.1. She later claimed that no loan was taken, and the cheque was given as security. The court noted inconsistencies in the complainant's evidence regarding the loan transaction, including differing statements about the payment dates and amounts. The complainant's failure to establish the nexus between the alleged loan and the cheque, along with the long silence over the transaction, created doubt about the lawful discharge of debt. The court considered precedents on time-barred debts and concluded that the complainant failed to prove the issuance of the cheque for a lawful discharge of debt. Issue 2: Necessity of Interference by High Court The High Court found that the Trial Court had rightly appreciated the evidence and concluded that the complainant did not prove the accused issued the cheque for a lawful discharge of debt. The findings were based on material evidence, and no interference was warranted. Order: The appeal was dismissed as devoid of merits, and the records were ordered to be sent back to the Trial Court.
|
