Challenge against quashing the summoning order u.s. 138 N.I Act
2) This is an appeal instituted at the instance of the original complainant of a complaint lodged under inter alia Section 138 of the Negotiable Instruments Act, 1881 (the “NI Act”) (the “Underlying Complaint”) assailing an order dated 06.09.2022 passed by the High Court of Delhi (the “High Court”) in CRL. M.C. No. 556 of 2019 whereunder the High Court quashed an order dated 03.08.2017 passed by the Metropolitan Magistrate -10, South-East, Saket Court (the “Trial Court”) summoning Mr. Amrit Sandhu Coaster/Respondent No. 2 in relation to the commission of an offence under Section 138 of the NI Act (the “Impugned Order”).
Quash is based on time barred cheque
3) The High Court by way of the Impugned Order deemed it appropriate to quash the underlying proceedings on the principal premise that as on the date of the issuance of the summoning order, the underlying debt and/or liability qua Respondent No. 2 was time barred.
Time barred debt or not itself prima facie for evidence and cannot invoke section 482 cr.p.c to quash the same
6) At the threshold, it would be apposite to refer to decisions of this Court in Yogesh Jain v. Sumesh Chadha, Criminal Appeal Nos. 1760-1761 of 2022 whereunder this Court has opined on the scope of interference by the High Court in proceedings under 138 of the NI Act qua an allegedly time barred debt at the stage of issuance of summons, whilst exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (the “CrPC”). The operative paragraph in Yogesh Jain (Supra) has been reproduced as under:
“8. Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the Accused to dislodge the legal presumption available Under Sections 118 and 139 reply of the N.I. Act. Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the Accused Under Section 482 of the CrPC.”
7) From a perusal of legal position enunciated above, it is clear that the classification of the underlying debt or liability as being barred by limitation is a question that must be decided based on the evidence adduced by the parties. We agree with aforesaid opinion. Undoubtedly, the question regarding the time barred nature of an underlying debt or liability in proceedings under Section 138 of the NI Act is a mixed question of law and fact which ought not to be decided by the High Court exercising jurisdiction under Section 482 of the CrPC.
Party
ATAMJIT SINGH …APPELLANT(S) VERSUS STATE (NCT OF DELHI) & ANR. …RESPONDENT(S) – CRIMINAL APPEAL NO. 516 OF 2024 [arising out of Special Leave Petition (Crl.) No. 298 of 2023] – JANUARY 22, 2024 – 2024 INSC 84
https://main.sci.gov.in/supremecourt/2022/40619/40619_2022_8_49_49681_Judgement_22-Jan-2024.pdf
Atamjit singh vs. State – 40619_2022_8_49_49681_Judgement_22-Jan-2024
Yogesh jain vs. Sumesh chadha – 6631_2020_4_40_38886_Order_10-Oct-2022
Further study
Time barred debt: Cheque itself is a promise to pay even if the debt is barred by time
1 Comment
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