TaxTMI 
TaxTMI 
2022 (9) TMI 669
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....ainant was having family relations with the accused. It is alleged that the accused had assured that interest on the said amount @ 12% per annum would be paid till return of the principal amount. It has specifically been stated therein that the accused had been paying interest, as had been agreed upon and finally on 6.7.2018, a cheque bearing No. 015973 dated 6.7.2018 drawn on Union Bank of India, Karnal, for an amount of Rs. 25 lacs was issued by accused from bank account No. 309201010035144, but the same upon its presentation, was returned back upaid with the remarks 'account closed' vide memo dated 18.7.2018. The complainant, thereafter, issued requisite notice and since no payment was made by the accused despite the said notice, the complainant instituted the complaint against the accused. 3. The complainant led preliminary evidence on the basis of which the accused were summoned by learned Judicial Magistrate First Class, Hisar vide order dated 13.11.2019 (Annexure P-3). 4. The learned counsel for the petitioner assails the complaint dated 26.9.2018 (Annexure P-2) as well as the summoning order dated 13.11.2019 (Annexure P-3) mainly on the following grounds :- (....
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....1524 of 2014 while reversing a decision of High Court which had quashed the complaint, being barred by the limitation, held as follows :- "7. In our opinion, the High Court erred in quashing the complaint on the ground that the debt or liability was barred by limitation and, therefore, there was no legally enforceable debt or liability against the accused. The case before the High Court was not of such a nature which could have persuaded the High Court to draw such a definite conclusion at this stage. Whether the debt was time barred or not can be decided only after the evidence is adduced, it being a mixed question of law and fact." (emphasis supplied) 7. A complaint, though expected to state all such facts which attract criminal liability of accused, need not be encyclopaedic so as to include all the finer details and evidence which would be required to substantiate the allegations. It would be at appropriate stage that evidence would be led to substantiate allegations. There can be no dispute that question as regards limitation is a mixed question of law and facts particularly when there could be an issue of extension of limitation. As such, inherent powers of Hig....
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....ion was issued i.e. on 6.7.2018, can it be said that liability to pay off debt still existed and that recovery of the same could have been enforced in Court of law. In order to determine the same, one would have to look into the terms and conditions under which the loan had been advanced, particularly as regards the fixation of any period for its return or as to whether it was an open ended loan. The relevant averments made in the complaint in this regard are reproduced hereinunder :- "2. That the accused persons were having family relations with the complainant and they approached the complainant and requested the complainant to advance Rs. 25 Lacs to them because were in dire need of money. The complainant keeping in view the family relations and dire need of the accused, transferred Rs. 5,00,000/- through HDFC Bank and Rs. 20,00,000/- through Bank of India, on 14.12.2011 in the account of the accused. The accused assured that they will pay the interest @12 % per annum till return of principal amount. 3. That the accused paid the interest as agreed upon and finally on 06.07.2018 for discharging of an existing outstanding and legally enforceable above stated liab....
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....riod of limitation will be computed from date of such acknowledgment. 12. Somewhat similar provisions pertaining to extension of limitation are found in Section 25(3) of Indian Contract Act, 1872, which is reproduced hereinunder: 25. Agreement without consideration, void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. An agreement made without consideration is void, unless (1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a 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 a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment ....
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....) of the Contract Act to pay a debt even though barred by limitation would renew limitation. 15. In any case, both the said provisions highlight that a right of lender to receive payment and an obligation of borrower to repay never dies with lapse of time but it is the remedy which dies. But under certain circumstances such remedy may get a fresh lease of life. Section 25(3) of the Indian Contract resuscitates a time-barred remedy to enforce payment by way of suit, consequent upon a promise made by debtor to pay off the debt or liablity. In such a case, where the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by 'Explanation' to Section 138 of the Act. 16. A Division Bench of Kerala High Court in Dr. K.K. Ramakrishnan v. Dr. K.K. Parthasarthy, 2003(3) RCR(Criminal) 711 (DB) , while considering the question as regards enforceability of liability upon dishonour of a cheque held as under: "9. The primary question that arises for consideration is - Does the delivery of a cheque in favour of a drawee not create a legally enforceable liability ? 10 to 14 x x x x x 15. For t....
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....tioner that there must be another agreement - other than the cheque - in order to reckon the promise in the cheque to be a valid agreement for the purpose of Section 25(3) cannot obviously be accepted. The promise made in the cheque is an enforceable agreement as is declared in Section 25(3) of the Contract Act. The cheque issued (delivered) for the discharge of the said promise/liability is thus perfectly within the sweep of Section 138." 18. This Court, in a recent case Sultan Singh vs. Tej Partap 2022(1) RCR (Criminal) 712, dealt with, in detail, an identical matter wherein the following issue were formulated for adjudication: "i) Whether issuance of a cheque for repayment of a time barred debt would amount to a written promise to pay the said debt within the meaning of section 25(3) of the Indian Contract Act, 1872? ii) In case, answer to the first question is in favour of the person in whose favour the cheque has been issued, then would the said promise, by itself, create any "legally enforceable debt", as stated in section 138 of the Negotiable Instruments Act, 1881? iii) Whether in the facts and circumstances of the present case, the present pet....
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.....' If the legislature had intended that such promise should be an 'express promise' only, it would have indicated so, but the word 'express' is not found in Section 25(3) of the Act. So, it would not be proper to read so and restrict the scope of Section 25(3) of the Act to "express promise" only. In the above view, I do not agree with the view taken by the Delhi High Court in the case of Tulsiram (AIR 1981 Delhi 165) (supra) and also of the Madras High Court in the case of N.E. Ethirajulu Naidu v. K.R. Chinnakrishnan Chettiyar, (AIR 1975 Madras 333)." 23. And last, but not the least, Section 29(1) of the Limitation Act specifically provides that nothing in the Limitation Act shall affect Section 25 of the Contract Act. Section 29(1) of the Limitation Act is reproduced hereinbelow: "29. Savings - (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872)." 24. The provisions of Section 25 of Contract Act having been insulated, its application in appropriate circumstances will have the effect of renewing limitation. 25. In view of judgment of this Court in Sultan Singh's case (supra), wherein the issue in ha....