Madras High Court

Sekar S vs K.Mariasamy on 14 September, 2022

                                                                                Crl.R.C.No.301 of 2016



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 14.09.2022

                                                           CORAM :

                                  THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

                                                  Crl.R.C.No.301 of 2016

                     Sekar S.                                                         .. Petitioner

                                                               Vs.

                     K.Mariasamy                                                      ..Respondent


                     PRAYER : Criminal Revision Case has been filed under sections 397
                     read with 401 of Criminal Procedure Code to call for the records in
                     C.A.No.85 of 2013 dated 25.01.2016, on the file of the learned XVI
                     Additional Sessions judge, Chennai and confirming the order/judgment
                     passed in C.C.No.216 of 2012, dated 26.03.2013 on the file of the
                     learned VIII Metropolitan Magistrate, George Town, Chennai and set
                     aside the same.


                                      For Petitioner       :     Mr.K.G.Senthil Kumar

                                      For Respondent       :     Mr.N.S.Suganthan
                                                                 Government Advocate (Crl.Side)




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                                                                            Crl.R.C.No.301 of 2016



                                                     ORDER

This Criminal Revision Case is filed against the concurrent

findings of the Courts below in a private complaint initiated under

Section 138 of Negotiable Instruments Act.

2. The case of the complainant is that he and the petitioner

herein are known to each other and for his family expenses, the petitioner

borrowed a sum of Rs.2,00,000/- and promised to repay it within six

months with interest at the rate of 24% per annum. However, he was

evading repayment in spite of repeated requests. At last he has given four

cheques bearing Nos.789420 dated 20.08.2011, 789419 dated

27.08.2011, 789418 dated 03.09.2011 and 789417 dated 10.09.2011 for

Rs.50,000/- each. When the cheques were presented for collection, it

were returned with an endorsement "Insufficient Funds". On receipt of

the return memo, statutory notice was caused to the petitioner on

13.12.2011 and it was received by the petitioner on 16.12.2011. But he

failed to reply. Hence the complaint.

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3. The respondent/complainant has examined his Power of

Attorney, Janarthanan as PW.1 and the complainant himself has mounted

the witness box as PW.2. 11 Exhibits were marked in support of his

complaint.

4. The petitioner has resisted the claim on the ground that

the complaint is hopelessly barred by limitation. The cheques dated

20.08.2011, 27.08.2011, 03.09.2011 and 10.03.2011 are the cheques

given for the time barred debt. Under Section 25 of the Contracts Act, a

promise made without consideration is void. The cheque given is only a

promise to pay a time barred debt, so it cannot be equated with

acknowledgment of a time barred debt to save the period of limitation

prescribed. Therefore, the complaint has to be dismissed.

5. However, the trial Court taking note of the fact that the

petitioner/accused has given undertaking letter dated 30.06.2011 marked

as Ex.P.10 and deed dated 12.07.2011 marked as Ex.P11 which is an

acknowledgment of debt, therefore, under Section 25(3) of the Contracts

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Act, the promise made in writing and signed by the person to pay the

debt of which might have enforced by the creditor for payment but for

the law limitation. It may be an agreement without consideration, though

it is saved from the rigor of Section 25(1) which say agreement made

without consideration is void, since there is written acknowledgment of

the debt

6. While holding so, the trial Court convicted the

petitioner/accused to undergo 6 months Simple Imprisonment and pay a

compensation of Rs.2,00,000/- within one month. Aggrieved by the said

conviction and sentence, C.A.No.85 of 2013 was preferred by the

petitioner/accused before the XVI Additional City Civil Court, Chennai.

The lower appellate Court on re-appreciation of law and the evidence has

confirmed the judgment of the trial Court.

7. In this revision case, the learned counsel for the

petitioner/accused reinforcing the defence of limitation, circulated a

judgment of this Court rendered in Sama Dharman Vs. Natarajan

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reported in 2012-2- L.W. ( Crl.) 516. According to the learned counsel

for the petitioner, in the cross examination of PW.2, the complainant

admits that the loan of Rs.2,00,000/- was given to the petitioner during

the month of February 2007. After receiving the loan, no payment was

made by the accused and thereafter, he gave the letters – Ex.P10 and

Ex.P11 and the four cheques which is the subject matter of the complaint.

While the complainant himself admitted that for the loan availed in the

month of February 2007, the subject cheques dated 20.08.2011,

27.08.2011, 03.09.2011 and 10.03.2011 were given ex facie for a time

barred debt. Complaint under Section 138 of N.I.Act is maintainable only

they are given the debt is legally enforceable. Since the complainant

himself has admitted that the cheques in the year 2011 were given for the

debt incurred in the year 2007, the Courts below ought to have properly

appreciated the evidence and law of limitation and should have dismissed

the complaint.

8. The learned counsel for the respondent /complainant per

contra would submit that the Courts below have rightly considered the

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letter acknowledging the debt and subsequent promise to pay the debt

which were marked as Ex.P10 and Ex.P11. Even the judgment of this

Court relied by the petitioner distinguish the promise to pay the time

barred debt and acknowledgment to pay the time barred debt. In the

instant case, before issuance of cheques, the accused has also

acknowledged the debt in writing. Therefore, the judgment cited by the

petitioner is not applicable to the facts of the case.

9. Heard the learned counsels and perused the records. The

short point involved in this revision is whether the four cheques which

are the subject matter of the complaint issued for discharge of legally

enforceable debt or a promise for a time barred debt?

10. This Court in Sama Dharman case cited supra in

Paragraph 14 and 15 has explained the differences between the

expressions “acknowledgment of the debt” and “promise” in the

following words:





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                                                                              Crl.R.C.No.301 of 2016



                                        “14.The      distinction   between       an

acknowledgment under Section 18 Limitation Act of 1983 and a 'promise' within the meaning of Section 25(3) of the Contract Act is of great importance. Both an acknowledgment and a promise are required to be in writing, signed by the party or his agent authorized in that behalf; and both have the effect of creating a fresh starting point of limitation. But while an acknowledgment under the Limitation Act is required to be made before the expiration 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

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needless to say that the respondent/complainant is not entitled to invoke Section 25(3) of the said Act.”

11. The Courts below have rightly considered Section 25 and

25(3) of the Indian Contracts Act and has held that the subject cheques

are not merely a promise to pay the time barred debt, but the cheques

were issued after the written acknowledgment of the time barred debt.

The documents are marked as Ex.P10 and Ex.P11.

12. This Court on considering the fact and the clarification

of this Court in the Sama Dharman case holds that the finding of the

Courts below is legally and factually sustainable, there is no error either

in appreciation of evidence or the law.

13. The learned counsel for the petitioner states that pending