TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 1
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....for the said loan, the Petitioner mortgaged his property bearing No. XV-5352/A, Shora Kothi, Pahar Ganj, New Delhi, vide Mortgage Deed dated 25.07.2013. 3. In discharge of his liability, the Petitioner issued two cheques; one Cheque No. 011966 dated 24.08.2018 for Rs. 25,00,000/- towards the principal amount and Cheque No. 113611 dated 16.08.2018 for Rs. 14,00,000/- towards the interest. Upon presentation, both the cheques were returned unpaid with the remark "Funds Insufficient" vide Bank Return Memos dated 28.08.2018. 4. Despite service of statutory Legal Notice dated 17.09.2018 by the Respondent, the Petitioner failed to make the payment within the time period, leading the Respondent to file the Criminal Complaint under S.138 NI Act, on 18.10.2018. 5. The learned Trial Court took cognizance and framed Notice under Section 251 Cr.P.C. to which the Petitioner herein pleaded not guilty and claimed trial. His primary defense was that the Cheques were given as security; the entire loan amount had been repaid and the respondent had misused the cheques. 6. After the conclusion of the trial, the learned MM in the impugned judgement found the Petitioner's defence to be unsubstantiate....
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....forceable debt and were very much within the period of limitation. The dishonor of the Cheques for "insufficient funds" is duly proven by the Bank Memos, and all procedural requirements under Section 138 of the NI Act have been complied with by the respondent. 14. The argument that security cheques cannot be the basis for prosecution is contrary to the settled position of law. A cheque issued as security creates a liability if the underlying debt remains outstanding on the date of presentation of the cheque. Once the issuance of the Cheques and the signatures thereon are admitted by the Petitioner, the statutory presumption under Section 139 of the NI Act is raised in favour of the Complainant. The burden was on the petitioner to rebut this presumption, which he has miserably failed to do. 15. The Petitioner's claim of having repaid the entire loan Receipt dated 01.11.2018, is a bald assertion, unsubstantiated by any cogent evidence. The defense of having made payment built around this Receipt dated 01.11.2018, is an afterthought and rightly disbelieved by the Courts as the said Receipt is dated after the filing of the criminal complaint. 16. Thus, it is submitted that both the ....
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.... lakhs being taken by the Petitioner and it was specifically recorded that the said amount shall be payable on or before 08.08.2015 along with interest @ 2% per month by the Petitioner to the Complainant. 22. This Mortgage Deed was followed by a Letter dated 10.06.2015 Ex.CW1/A3 by Respondent Ashok Kumar Bhalla to M/s Path Finder India (Pvt.) Ltd. through Mr. Sharda Nand Bansal, the Petitioner, wherein again a reference was made to the two Mortgage Deeds and it was stated that for the last two months the Respondent had been requesting the Petitioner to arrange the refund of entire amount on the due date of 08.08.2015. 23. Though much has been contended on behalf of the Petitioner that the original Mortgage Deeds had been returned by the Respondent for which reason only the photocopy of the two Mortgage Deeds has been produced, but the Petitioner has clearly admitted the execution of two Mortgage Deeds as well as taking of loan of Rs. 25 lakhs on 25.07.2013. 24. The Respondent No.2 Ashok Kumar Bhalla/Complainant in his testimony as CW1 had deposed that the loan amount was not paid and consequently two postdated Cheques dated 16.08.2018 and 24.08.2018 in the sum of Rs. 25 lakhs an....
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....rtain whether the debt in lieu of which the cheque was presented, had become time-barred on the date of presentation of the cheques, on 25.08.2018. 30. The defense of the Petitioner is that the loan was allegedly given on 25.07.2013 which was repayable before 23.07.2014. Thus, the three-year limitation period expired on 22.07.2017. It is argued that even if the contention of the Complainant is accepted that there was a debt, even then it cannot be ignored that the debt had become time barred and the Complaint was not maintainable. 31. The contention that the debt being time barred, is completely demolished by the fact that the Loan was payable by 08.08.2015 while the two impugned Cheques had been handed over to the Petitioner in March, 2018, which amounts to an acknowledgement of the existing debt. Furthermore, the cheques dated 24.08.2015 and 16.08.2015 even if considered to have been issued in respect of time barred debt which was payable till 07.08.2018, then too Section 25(3) Indian Contract Act, 1872 provides that a promise made in writing and signed by the person to be charged therewith, to pay wholly or in part, a debt of which the creditor might have enforced payment but ....
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....it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, 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 but for the law for the limitation of suits, is a valid contract. Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31-3-1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgment and the creditor might have a fresh period of limitation from the date on which the acknowledgment was made." 34. The same has been reiterated by the coordinate Bench of this Court in Ra....
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....t being time-barred and thus, not being payable was not raised before the Trial Court. The ld. Trial Court held that the Accused was unable to rebut the statutory presumption and could not substantiate the defense that the loan was fully repaid. 40. The accused in his Appeal before the learned ASJ raised the issue of debt being time-barred. However, the Ld. ASJ rejected the ground and held that although the original mortgage deed stipulated a repayment date of July, 2014, but the subsequent documents, such as the demand for a refund which was made by the Complainant in a letter dated 10.06.2015 (Ex.CW1/A3) point to the fact that the "repayment of loan was kept open and final date of repayment of the loan was to be determined by the [arties as per their will". 41. Furthermore, the Ld. ASJ noted the Complainant's testimony during cross-examination that he had received the post-dated cheques in March, 2018. The cheques in question, therefore, were issued for the discharge of this new liability, bringing them squarely within the ambit of Section 138 of the NI Act. Repayment of Loan vide Receipt Dated 01.11.2018: 42. The next defense of the Petitioner was that the loan stood repaid,....