N.Prabhakaran vs Praveen Bohra Jain
2021 Latest Caselaw 23533 Mad

Citation : 2021 Latest Caselaw 23533 Mad
Judgement Date : 1 December, 2021

Madras High Court

N.Prabhakaran vs Praveen Bohra Jain on 1 December, 2021

                                                                                          Crl. O.P. No. 24935 of 2017


                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED: 01.12.2021

                                                               CORAM

                                    THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                                   Crl. O.P. No.24935 of 2017
                                             and CRL.M.P.Nos.14387 & 14388 of 2017

                     N.Prabhakaran                                                        ..Petitioner

                                                                 Vs.

                     Praveen Bohra Jain                                                   ...Respondent

                     PRAYER: Criminal Original Petition filed under Section 482 of Criminal
                     Procedure Code, praying to call for the records in C.C.No.950 of 2015 pending
                     on the file of the learned Judicial Magistrate, Ooty and quash the same.
                                              For Petitioner      : Mr.M.Guruprasad
                                              For Respondent      :Mr.R.Vivekananthan

                                                               ORDER

This Criminal Original Petition has been filed to call for the records in

C.C.No.950 of 2015 pending on the file of the learned Judicial Magistrate,

Ooty and quash the same.

Page No:1/6 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 24935 of 2017

2. The main submission of the learned counsel for the petitioner is that

the cheque is said to have been issued only towards the time barred debt.

Therefore, the same cannot be enforced in the eye of law. In support of his

submission, he also relied upon the judgment of this Court reported in (2012 (2)

L.W.(Crl.) 516) in the case of Sama Dharman Vs. Natarajan.

3. Having cited the above judgment, the learned counsel fairly submitted

that this judgment is later set aside by the Hon'ble Apex Court and the same is

reported in (2021 (6) SCC 413) in the case of S.Natarajan vs. Sama Dharman

and another.

4. This Court has held in Sama Dharman's Case (Supra) that to

comply the provisions under Section 25(3) of the Contract Act, unless a

specific contract in form of novation is created with regard to payment of time

barred debt, Section 25(3) of the said Act cannot be invoked. However, the

said judgment has been set aside by the Hon'ble Apex Court this has been

reported in (2021 (6) SCC 413) in the case of S.Natarajan vs.

Sama Dharman and another. Therefore, the judgment reported in

Page No:2/6 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 24935 of 2017

Sama Dharman Vs. Natarajan (Supra) rendered by this Court no longer exists

in the eye of law and over ruled.

5. It is stated by the learned counsel that the same judgment is relied by

this Court in subsequent decision. As the very judgment is set aside, same

cannot be valid in the eye of law, it is to be noted that past consideration is

valid consideration under law. Therefore, question of some other contract in the

form of novation to validate the past consideration does not arise at all. In such

view of the matter, it is left open to the parties to raise their defence before the

Trial Court.

6. It is relevant to refer the judgment of this Court in Crl.R.C.492 of

2014 in the case of M.Danabal vs. Natarajan, wherein, it is stated in Para 24

is as follows:

24. To sum up, the cheque in this case has been

issued after the expiry of three years from the date of the

debt and therefore, the debt in this case was not a legally

enforceable debt when the cheque was issued. A fortiori

the prosecution founded under Section 138 of the N.I. Act

Page No:3/6 https://www.mhc.tn.gov.in/judis Crl. O.P. No. 24935 of 2017

on such a cheque is not maintainable and the accused

deserves to be acquitted.

7. It is relevant to refer three Division Bench judgments in the case of

Mrs.Jayashree Jayanth vs. Mr.N.Krishnaswamy Mrs. Premaleela

Krishnaswamy and others reported in 2017 SCC Online Mad 26307,

N.Namberumal Chetti vs. Veeraperumal Pillai and others in

O.S.A.Nos.66 and 125 of 1928 and Devukutty Amma vs.

Madhusudanan Nair in A.S.No.363 of 1988. Courts have held that time

barred debt is valid consideration. In such view of the matter, having regard to

the fact that time barred debt is valid consideration, it cannot be said that it is

not enforceable and there is no legally enforceable debt.

8. Accordingly, this Criminal Original Petition is dismissed.

Consequently connected miscellaneous petitions are closed.

01.12.2021 Index : Yes / No Internet: Yes Speaking/non speaking order