K. Lakshmanan vs S. Ravichandran

B. Akbar Bash a Khadiri, J.—The accused in C.C.No.455 of 1998 on the file of the Judicial Magistrate No. 1, Erode, Periyar District, has

come forward with the instant Crl.O.P.No. 18066 of 1998, to quash the same. The respondent herein filed a complaint against the petitioner u/s

138 of the Negotiable Instruments Act.

The case of the complainant briefly stated is as under:- The complainant is a businessman carrying on business in textile and automobiles. The

accused is also a business man dealing in paper products and is running a textile mill at Dindigul. For his business purpose, the accused borrowed

Rs.6,00,000/- from the complainant on 07.03.1998. Towards repayment of the debt, he had issued a post-dated cheque for Rs.6,00,000/- on

07.03.1998. The cheque was dated 07.04.1998. Again on 15.03.1998, the accused borrowed Rs.6,00,000/- and issued a post-dated cheque

dated 15.04.1998 for the said amount. Both the cheques were presented in the bank on 20.04.1998, but they were returned on the same date

with endorsement ''insufficient funds''. Statutory notice was issued to the accused on 24.04.1998, which he had received on 29.04.1998. He had

given a reply on 16.05.1998, but since no payment was made, the complainant instituted proceedings u/s 138 of the Negotiable Instruments Act,

against the accused.

As against this proceedings, the accused has preferred the instant petition. According to the petitioner, one of the essential ingredients of offence

u/s 138 of the Negotiable Instruments Act is that the cheque must have been drawn ""for the discharge in whole or in part of any debt or other

liability"". But, this has not been pleaded in petition.

The next point contended by the learned Counsel for the petitioner is that the complaint does not bear any date of presentation and therefore the

complaint is barred by limitation.

Heard both the sides. It is evident that the petitioner had issued post-dated cheques on 07.03.1998 and 15.03.1998. Post-dated cheque is only

a bill of exchange, because no payment in praesenti is required. It becomes a cheque when the date of payment reaches. In the instant case, the

date of payment reached on 07.04.1998 and 15.04.1998. Therefore, as on the date of the presentation, both the documents have become

cheques.

The point raised by the learned Counsel for the petitioner is that there is nothing to indicate in the complaint that the cheques were issued for

discharge in whole or in part of any debt or other liability. What is debt? It is something owed to another; a liability, an obligation, a chose in action,

which is capable of being assigned by creditor to some other person. A debt is a sum of money which is now payable or will become payable in

future by reason of present obligations. It therefore follows that there must be debitum in presenti; Solventum may or may not be in praesenti. The

Honourable Supreme Court in Keshoram v. C.W.T. (A.I.R. 1966 S.C. 1360) have observed that if there is an obligation to pay a sum of money

at a future date, it is debt owing, but when the obligation is to pay a sum of money in praesenti, it is a debt due. A sum due would therefore mean a

sum for which mere is an existing obligation to pay in praesenti or in other wards it is presently payable.

The learned Counsel for the petitioner brought to my notice the observations of Pratap Singh J. made in Kumar K. v. M/s. Bapsons Foot Wear

Etc. (1993 L.W. (Cri.) 600), wherein the noble Judge has held that mere allegation that in the course of their business, the accused issued a

cheque etc. is not sufficient to indicate the existence of any debt or other liability. That was a case where in the course of business the accused

issued cheque and recital in the complaint was ""the complainant states that in their course of business, the accused had issued a cheque

S.B.No.795044 dated 20.12.1989 for Rs.2,000/- drawn on Karur Vysya Bank Limited, Polur, North Arcot District"". The noble Judge has

observed that the plea does not indicate of a pre-existing debt. But the facts of the case on hand are entirely different. In the complaint, the

petitioner had stated as under:-""3) The accused had borrowed a sum of Rs.6,00,000/- from the complainant on 07.03.1998 for business purpose.

Towards the repayment, the accused had issued a post dated cheque on 7.3.1998 for Rs.6,00,000/- (Rupees six lakhs only) dated 7.4.1998

drawn on the Lakshmi Vilas Bank Limited, Pallipalayam (Cheque No.977725). The accused had promised to honour the cheque when presented

for collection.

4) Again on 15.3.98 the accused had borrowed another sum of Rs.6,00,000/- from the complainant for business needs.

Towards the repayment on the same date the accused had issued a post dated cheque for Rs.6,00,000/- dated 15/4/98 drawn on the Lakshmi

Vilas Bank Limited, Pallipalayam (Cheque No.977726). These pleas clearly indicate of pre-existing debt, i.e., a debt payable in praesenti. 1 feel,

the complaint is not lacking in expressing that the cheques have been issued for the discharge of the existing debt.

Nextly, it is argued by the Counsel for the petitioner that there is nothing to indicate that the petition is in time. The necessary ingredients to

attract the offence u/s 138 of the Negotiable Instruments Act are:-

(i) Cheque should have been issued for the discharge in whole or part of any debt or other liability;

(ii) Cheque should have been presented within the period of six months or within the period of its validity whichever is earlier. It should have been

returned by the Bank. Cheque may be presented any number of times within its validity;

(iii)The payee or the holder in due course should have issued a notice in writing to the drawer within 15 days of the receipt of information by him

from the bank regarding the return of the cheque as unpaid;

(IV) After the receipt of the said notice by the payee or the holder in due course the drawer should have failed to pay the cheque amount within

(sic) of the receipt of the said notice. (v)On non payment of the amount (sic) dishonoured cheque within 15 days (sic) of the notice by the drawer,

the comp(sic) been filed within one month from expiry of the grace time of 15 days before a Mesopolitan Magistrate or a Magistrate not below the

rank of a Judicial Magistrate of the First Class

(underlining-mine)

According to the respondent, the cheques had been presented in the bank on 20.04.1998. It was returned on the same date. Notice was issued

on 24.04.1998, which the petitioner has received on 29.04.1998. He ought to have made payment within fifteen days of the receipt of the notice,

i.e., on or before 14.05.1998. If he fails to make payment, then the complaint should have been preferred with one month from 14.05.1998, i.e.

on or before 13.06.1998. As rightly pointed out by the learned Counsel for the petitioner, the complaint does not appear to bear any date. But the

Court has affixed the date-seal which is bearing the date, as 12.06.1998. This indicates that the complaint has been filed on 12.06.1998. The

complaint filed within one month after the expiry of the grace period of 15 days to make payment, is well within limitation. This petition fails and

therefore is dismissed. The trial Magistrate is directed to dispose of the matter within two months from the date of receipt of a copy of this order.

Consequently, Crl.M.P.Nos.8169 and 8170 of 1998 are also dismissed.