11
CC NI ACT2267/2023
K.B. HARLALKA
Vs.
DEVENDRA KUMAR AGGARWAL
PS (Rani Bagh)
Complainant is a senior citizen
Proceedings conducted online through Video Conferencing
using CISCO WEBEX Software.
Assistant Ahlmad and Regular Stenographer of this Court
are on leave today.
29.02.2024
Present: None.
Matter is listed for orders on the point whether the
present complaint is with regards to time barred debt or not.
Arguments on behalf of the complainant already
heard.
List for order at 04:00 PM. SHRUTI Digitally signed by
SHRUTI SHARMA
SHARMA Date: 2024.02.29
15:47:42 +0530
(SHRUTI SHARMA-II)
MM(NI Act) Digital Court-01, North West,
Rohini Courts, Delhi/29.02.2023
At 04:00 PM
Vide this order, I shall decide whether the present
complaint is with respect to time barred debt or not. In nutshell
the case of the complainant is that the accused had approached
the complainant in the year 2015 for financial assistance for the
purpose of doing business and on account of the same money
was lent to the accused in installments in the year 2015 to 2017.
Admittedly the last payment that was made by the accused as
against this loan was in the year 2018 on 21.04.2018 for a sum of
Rs. 1,52,383/- (Rupees One Lakh Fifty Two Thousand Three
Cont…..
Digitally signed
SHRUTI by SHRUTI
SHARMA
SHARMA Date: 2024.02.29
15:47:49 +0530
-2-
Hundred and Eighty Three only) as interest payment. After that
with regards to the alleged loan amount a cheque of
Rs.10,00,000/- (Rupees Ten Lakhs Only) was issued by the
accused in favour of the complaint on 27.02.2023. Now the issue
that is before this Court at this stage is whether the cheque in
question, so issued by the accused in favour of the complainant is
with regards to time barred debt or not, as the last payment that
was made by the accused to the complainant was made in the
year 2018 and cheque in question in response to the same was
issued by the accused in the year 2023.
Ld. Counsel for the complainant has mainly relied
upon the judgement of the Hon’ble Supreme Court in the case of
K Hymavathi vs. State of Andhra Pradesh & Anr. SLP (Crl) No.
7455 of 2019 and judgement of Hon’ble High Court of Delhi in
the case of Virender Kumar Jain vs. Alumate (India) Pvt Ltd.
(2012) to address his arguments.
It has been submitted by the Ld. Counsel for the
complainant that the case of the complainant as per judgement of
K. Hymavathi falls under the ambit of Section 25(3) of the
Indian Contract Act and cheque itself is a promise to pay even if
the debt is barred by time and the question whether the debt or
liability is barred by limitation has to be decided at the stage of
evidence and since the question of limitation is a mixed question
of law and fact and it is only in cases wherein an amount which
is out and out non- recoverable, towards which a cheque is
issued, dishonoured and for recovery of which a criminal action
is initiated, the question of threshold jurisdiction will arise. As
Cont…..
Digitally signed by
SHRUTI SHRUTI SHARMA
SHARMA Date: 2024.02.29
15:47:54 +0530
-3-
the present stage of the proceedings is the stage of summoning
therefore only prima facie case has to be seen and question of
debt being barred by limitation has to be decided at the
appropriate stage of evidence. He further submits that as per
judgement of Virender Kumar Jain v. Alumate (India) Pvt. Ltd.
MANU/DE/0885/2012 High Court of Delhi it has been held by
the Hon’ble High Court of Delhi that in the cases where the loan
was given without fixing any date of repayment, the loan in such
cases becomes repayable on demand and the period of limitation
in such cases will start running from the date of demand. The
demand in the present case can be said to be made in the year
2023 i.e., when the cheque in question was issued by the accused
in favour of the complainant therefore the period of limitation of
three years will start running from the year 2023 instead of 2018,
and in view of the same the present complaint is well within the
limitation.
Heard. Record Perused.
Section 138 NI Act clearly provides that cheque
should be issued in discharge of any debt or liability and
Explanation attached to said section makes it clear that the
“Debt” for the purpose of this Section should mean a legally
enforceable debt. It is also a well settled law that a debt which is
barred by time is not considered as a legally enforceable debt.
NI Act is silent with regards to the period of
limitation in which demand of loan for which cheque in question
has been issued can be made by the complainant therefore
recourse of the limitation Act has to be taken to calculate the
period of limitation for debt.
Cont…..
Digitally signed
SHRUTI by SHRUTI
SHARMA
SHARMA Date: 2024.02.29
15:48:00 +0530
-4-
As the case of the complainant is based upon giving
friendly loan to the accused on the basis of an oral arrangement,
therefore the case of the complainant will fall under Article 19 of
the Limitation Act which states as under:
Description of Suits Period of limitation Time from which
period begins to run
19. For money payable Three years When Loan is made
for money lent.
In the present case as the last payment from the side
of the accused was made to the complainant on 21.04.2018
therefore the limitation of three years will start running from the
year 2018 for filing the present complaint. And as per that the
period of limitation for filing the present complaint expires in
April 2021. The present complaint has been filed in the month of
May 2023 therefore prima facie the present complaint appears to
be with respect to time barred debt.
The complainant has relied upon the judgement of
Hon’ble Delhi High Court in case of Virender Kumar Jain v.
Alumate (India) Pvt. Ltd. in which it was held that in cases
where loan has been given without fixing the date of repayment,
the said loan would be repayable on demand, therefore the case
of the complainant as per the above said judgment would fall
under Article 22 of the Limitation Act which states as under:
Description of Suits Period of limitation Time from which
period begins to run
22. For money deposited Three years When the under an
under an agreement that
agreement that demand
it shall be payable on
demand, including money is made
of a customer in the
hands of his banker
payable for money lent.
Cont…..
Digitally signed by
SHRUTI SHRUTI SHARMA
SHARMA Date: 2024.02.29
15:48:06 +0530
-5-
Therefore, as per Ld. Counsel for the Complainant
as the demand was made by the complainant in the year 2023 (as
cheque was issued by the accused in the year 2023) therefore the
period of limitation of three years as per Article 22 of the
Limitation Act will start running from the year 2023 and
therefore the present complaint is filed well within limitation for
a legally enforceable debt.
In the present case there is no averment in the
complaint as to when the loan amount was demanded by the
complainant from the accused after 2018, however the same in
the opinion of this Court is a contentious issue to be decided at
the stage of evidence. Further, in the case of K Hymavathi vs.
State of Andhra Pradesh & Anr., It has been made clear by the
Hon’ble Supreme Court that the question of limitation is a mixed
question of law and fact to be decided at the stage of evidence
and as the case of the complainant is not outrightly with regards
to an unenforceable or illegal debt therefore the appropriate stage
to decide the question of limitation and debt being a time barred
or not will be at the stage of evidence. It is true that at the stage
of post summoning evidence the complainant may most probably
adopt his pre summoning evidence only and there may not be any
new evidence placed on record from the side of complainant to
further his case however the discovery of new and additional
facts during the stage of cross examination cannot be obliviated
completely as at that stage the accused will also be present before
the court and both the parties will be at par to bring the best
possible evidence in order to get a favourable judgment from the
Court.
Cont…..
Digitally signed
SHRUTI by SHRUTI
SHARMA
SHARMA Date: 2024.02.29
15:48:11 +0530
-6-
As the present stage is the stage of pre summoning
evidence where only prima facie case has to be seen against the
accused therefore the Court at this stage does not deem it fit to
dwell further on the issue of limitation and dismiss an otherwise
meritorious complaint on the threshold of limitation of debt,
which otherwise also is ultimately a mixed question of law and
fact and can be very well decided in length at the stage of passing
final judgment depending on the evidences adduced by both the
parties.
Therefore, without passing any final
decision/remarks with regards to the fact whether the debt in the
present complaint is time barred or not, the present complaint is
proceeded further to post summoning stage.
The question as to whether the debt is time barred or
not will be decided at the stage of final judgement after recording
evidences of both the parties.
Nothing contained herein shall affect the merits of
the case.
Heard on the point of summoning.
This is complaint filed for offence punishable under
Section 138 NI Act. Complaint, affidavit of evidence and other
annexed documents perused. The original complaint and
documents are placed in the safe custody of the Reader cum-
ahlmad of this court.
I take cognizance of the said offence.
Following the law laid down in A.C.Narayanan Vs.
State of Maharashtra & Anr. (2014) 11 SCC 790, complaint,
Cont…..
Digitally signed by
SHRUTI SHRUTI SHARMA
SHARMA Date: 2024.02.29
15:48:17 +0530
-7-
affidavit of evidence and documents considered. In view of the
complaint, documents produced and verification in the form of
affidavit of evidence, there are sufficient grounds for proceeding
further against the accused for offence punishable under Section
138 NI Act.
The complainant side is directed to file metadata
form before filing of PF. Thereafter, Reader-cum-Ahlmad to
issue summons against the accused person on PF/RC/Approved
courier. Service be also effected on the email, whatsapp
message(s) and text message of accused person(s). Proof of
service/tracking report be filed and updated in the digital file on
or before the next date of hearing. The process server is directed
to serve the summons by way of affixation, if premises found
closed or same could not be served personally or on any adult
male member. An endorsement be also made that if application
for compounding at first or second hearing is made the court may
pass appropriate orders at the earliest and if settlement is made at
subsequent stage the consequences as envisaged in Damodar S.
Prabhu Vs. Sayed Babulal H.; (2010) 5 SCC 663 shall be
enforced.
The Ahlmad is directed to mention the official email
ID and video conferencing link of this court on the summons.
Complainant is directed to file PF and take steps within 7 days
including providing copy(ies) of complaint otherwise the
complaint may be dismissed Under Section 204 (4) Cr.P.C.
Cont…..
Digitally signed
SHRUTI by SHRUTI
SHARMA
SHARMA Date: 2024.02.29
15:48:22 +0530
-8-
Matter be fixed for appearance of accused/furnishing
of bail/consideration on notice on 20.05.2024 at 10.00 AM.
Digitally signed
SHRUTI by SHRUTI
SHARMA
SHARMA Date: 2024.02.29
15:48:27 +0530
(SHRUTI SHARMA II)
MM(NI Act) Digital Court-01, North-West,
Rohini Courts, Delhi/29.02.2024
