9911796707
TMI Blog2012 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The complaint in question has been taken on file in C.C.No.250 of 2011 on the file of the Judicial Magistrate Court, Musiri. During pendency of the same, the present petition has been filed under section 482 of the Code of Criminal Procedure, 1973 praying to quash the proceeding in C.C.No.250 of 2011. 3. Before considering the rival submissions made on either side, the Court has to narrate the main averments made in the complaint filed under section 138 r/w section 142 of the Negotiable Instruments Act, 1881. It is stated in the complaint that on 06.05.2006 the respondents/accused have received a sum of Rs. 49,000/- from the petitioner/complainant. On 04.07.2006 they have received a sum of Rs. 1,00,000/-. On the same day, they received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts alleged to have been received by the respondents/accused/petitioners have become time barred on the date of issuance of cheque i.e., on 01.02.2011. 9. The learned counsel appearing for the petitioners has succinctly contended that the cheque in question has been given on 01.02.2011 and on the date of issuance of cheque, all the debts alleged to have been received by the petitioners/accused have become time barred and since the cheque in question has not been given in respect of enforceable debt or liability so as to attract the provision of section 138 of the Negotiable Instruments Act, 1881, the complaint in question is not legally maintainable and the Court below has failed to look into the same and therefore, the entire proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. 12. The entire argument advanced on the side of the respondent/complainant is based upon the provision of section 25(3) of the said Act and the same can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the period of limitation, a promise under section 25(3) to pay a debt may be made after the limitation period. Further promise to pay must be in writing in order to be enforceable. 15. As pointed out earlier, the learned counsel appearing for the respondent/complainant has taken umbrage under section 25 (3) of the Indian Contract Act, 1872. It has already been pointed out that for the purpose of invoking the said Section, there must be a distinct promise in writing. In the instant case, such a promise has not been made by the petitioners/accused and therefore, it is needless to say that the respondent/complainant is not entitled to invoke section 25 (3) of the said Act. 16. It is an admitted fact that all the debts alleged to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question on 01.02.2011 is not a promise. Therefore, viewing from any angle, on the date of issuance of the cheque in question that is, on 01.02.2011, all the debts mentioned in the complaint have become time barred and the cheque in question has not been issued in respect of enforceable debt or other liability. Under the said circumstances, the complaint in question under section 138 r/w section 142 of the Negotiable Instruments Act, 1881 is not legally maintainable and this Court by invoking inherent powers can very well quash the entire proceeding in C.C.No.250 of 2011. 21. The learned counsel appearing for the petitioners has drawn the attention of the Court to the following decisions: (a) In (2001) MLJ (Crl)115 Kerala (Joseph Vs. Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant case, it has already been pointed out that at the time of issuance of cheque that is, on 01.02.2011, the debts alleged to have been received by the petitioners have become time barred. Therefore, viewing from any angle, the contention put forth on the side of the petitioners is really having subsisting force. 24. The learned counsel appearing for the respondent has drawn the attention of the Court to the decision reported in 2007 (2) T.N.L.R.286 (Mad)(MB) (A.R.M.Nizmathullah V. Vaduganathan), wherein this Court has held that "the cheque in question has been issued in view of the fact that the debtor has acknowledged his liability. Under the said circumstances, he should not be entitled to claim that the debt has become barre ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
