A. Scope of the Appeal:

1. This appeal is filed at the instance of the appellants-original complainants, challenging the judgment and order dated 31.07.2007 passed by learned Judicial Magistrate First Class at Manavdar, DistrictJunagadh in Criminal Case No.176 of 2005. By the said judgment and order, the learned Magistrate has recorded acquittal of respondent No.1-original accused for the offence punishable under Section138 of the N.I. Act. B. Facts:

2. Brief facts leading to the present case in nutshell are as under:

That original complainant had given the friendly loan of Rs.2,00,000/- to the respondent No.1 by cheque No.70781 dated 15.12.1998 and said amount had been withdrawn by the respondent No.1 and accordingly, respondent No.1 had received the same from the original complainant. That said amount had been returned back and for that sum of Rs.60,000/- had been paid in cash and for the remaining amount of Rs.1,40,000/-, cheque dated 31.12.2004 had been given by the respondent No.1. The said cheque had been deposited in the bank account, but the said cheque had been returned with banker’s endorsement “account is closed”. Thereafter, the original complainant had issued the requisite notice under Section 138 of the N.I. Act on 14.02.2005 and the said notice had been duly received by the respondent No.1 on 18.02.2005, to which, no reply had been given by the respondent No.1. Thereafter, original complainant had filed the above mentioned criminal case before the learned Magistrate and evidence had been recorded and thereafter, the learned Magistrate by order dated 31.07.2007, had acquitted the respondent No.1. Therefore, being aggrieved with the said judgment, this appeal is preferred at the instance of the appellant- original complainant.

C. ARGUMENTS OF LEARNED ADVOCATES FOR THE PARTIES:

(i) Advocate for the Appellants:

3. Mr. J. R. Shah, learned advocate on record for the appellants, has invited attention of this Court to the findings and reasons recorded in the impugned order by the learned Magistrate. He has submitted that while deciding the said complaint, learned Magistrate has arrived at conclusion that cheque issued against a time barred debt cannot be treated as acknowledgment in eye of law. On examination of disputed cheque, the learned Magistrate has noticed that in column of date, the year has been printed of “19” whereas the date endorsed in handwriting has been mentioned as 15.12.2004, and therefore, the learned Magistrate has observed that if at all disputed cheque has been given by the accused to the appellants in the year2004, then in the disputed cheque year “20” has not been printed. This has led the learned Magistrate to draw inference that cheque had been given in the year-1998, when the loan has been given by the appellant to the accused. In addition to the same, the learned Magistrate has further observed in the impugned judgment that loan transaction has taken place in the year-1998 and on that date, blank cheque has been given by the accused to the appellant and the said cheque, which has been given as security has been deposited deposited by the appellant in the year-2004, and therefore, the claim of the appellant was outside the period of limitation. It is to be noted that in the impugned judgment, learned Magistrate has not considered the statutory presumption of Section 118 and/or Section 139 of the N.I. Act.

3.1 That issue of limitation, which has been decided by the learned Magistrate against the complainant, is completely against the provisions of law. He has submitted that in the present case, accused has not entered in the witness box nor the accused has given any reply to the demand notice given by the appellant. Similarly, in the statement recorded under Section 313 of Cr.P.C., accused has not even disclosed and contended that disputed cheque has been given in the year-1998 and the same has been misused by the appellant and deposited in the year-2004. Not only that during the crossexamination of the appellant, advocate of the respondent has not even suggested such defence. The defence has not raised any defence of misused of cheque in the year-2004 by the appellant and in absence of any evidence and material being produced by the accused, merely by drawing inference about the year printed on the disputed cheque, was itself not sufficient for the learned Magistrate to accept that the accused has discharged his initial burden. Mr. Shah, therefore, submitted till the accused discharged his initial burden of proving the case by producing the evidence on materials, onus will not be shifted upon the complainant, and therefore, the presumption of Sections 138 and 139 of the Act, shall continue to apply in the facts of the present case.

3.2 Mr. J. R. Shah, learned advocate on record for the appellants, has further submitted that the issuance of cheque by the accused and the signature on the disputed cheque is not challenged by the accused and unless the contrary is proved by the accused, the statutory presumption under Section 118(a) of the Act is required to be drawn in favour of the complainant that the instrument was drawn in favour of the holder for consideration. He has further referred to and relied upon Section 139 of the N.I. Act, and has submitted that presumption with regard to the complainant being holder of the cheque against the payment of whole or in part of legal debt or liability arises in favour of the complainant. In such circumstances, the presumption available under the law exist in favour of the complainant. The accused had failed to enter in the witness box nor he has led any cogent evidence on record. In such circumstances, there was no rebuttal of the aforesaid presumption, which existed in favour of the complainant.

3.3 Mr. J. R. Shah, learned advocate on record for the appellants, has relied upon the judgment of the Hon’ble Apex Court in the case of A.V. Murthy vs. B.S. Nagabasavanna reported in (2002) 2 SCC 642 [LQ/SC/2002/201] . By referring to the aforesaid decision, he has submitted that in the said case, the cheque was issued in respect of loan taken four years back. The learned Sessions Judge as well as Single Judge of High Court proceeded to held that complaint proceedings were not maintainable as the amount advanced by the appellant to the accused, was about four years prior to the date of issuance of cheque. In view of “Explanation” appended to Section 138 of the N.I. Act, both the courts below had held that there was no enforceable debt or liability as against the respondent. While arriving at such conclusion, the Court has accepted the plea of accused merely on the basis of the averments made in the complaint as well as statement of complainant recorded before the trial court where he had accepted the fact of borrowing the amount four years prior to issuance of the cheque and the learned Magistrate having taken cognizance on such admitted fact, committed error without appreciating the legal position that there was bar of limitation. The learned Sessions Judge, therefore, proceeded to quash the entire proceedings and being aggrieved by the same, the complainant had approached in revision before the High Court, which upheld the aforesaid view of the learned Sessions Judge. The Hon’ble Supreme Court in Special Leave to Appeal examined the moot question of law in light of Sub- Section (3) of Section 25 of the Indian Contract Act and held that the cheque being issued by the accused, amounts to acknowledgment and the creditor will have a fresh period of limitation from the date on which, the acknowledgment was made.

3.4 Mr. J. R. Shah, learned advocate on record for the appellants, has further relied upon the decision of the Hon’ble Supreme Court in the case of K.N. Beena vs. Muniyappan and Ors. reported in (2001) 8 SCC 458 [LQ/SC/2001/2418] . By relying upon the aforesaid decision, learned advocate Mr. Shah has submitted that the burden was on accused to prove that the cheque has not been issued for a debt or liability. By relying upon the aforesaid principle, he has submitted that the accused not having entered in the witness box nor any evidence being led, the accused had failed to rebut the presumption with regard to the existence of debt/liability against the accused. By making the aforesaid submissions, he therefore, urged this Court to quash and set aside the impugned judgment and order passed by the learned Magistrate and to allow this appeal.

(ii) Advocate for the Respondent- Original Accused:

4. On the other hand, Mr. Ashish M. Dagli, learned advocate on record for the respondent No.1-original accused, has strongly objected to the aforesaid submissions of learned advocate on record for the complainant. At the outset, he has invited attention of this Court to the case of the complainant. He has further invited attention of this Court to the findings and reasons recorded by the trial court while recording the order of acquittal. He has submitted that cogent reasons have been assigned by the learned Magistrate while passing the impugned order. such recording of finding is arrived upon evaluation of the evidence of the complainant.

4.1 He has further submitted that at Exh.11, plea of accused came to be recorded, in which, he has pleaded not guilty and it is the say of the accused that so called transaction is of the year-1998 and the blank cheque was given to the deceased father of the complainant in the year-1998 and since amount was repaid, the said cheque was required to be returned. However, later on in the year-2004, has utilized the said cheque. In support of his aforesaid submissions, he invited attention of this Court to disputed cheque placed on record vide Exh.24, which clearly shows that date mentioned in printed form on cheque is “19”, however, date written is 31.12.2004. He also emphasized the fact that entire content of notice is printed one except the date is handwritten. He submitted that all these circumstances, which has come on record suggest the blank cheque was given in the year-1998 and was utilized later on in the year-2004. Additionally, when the question was put to complainant about part payment, he has fairly admitted about part payment, however, he did not recollect about date, time of such repayment. He admitted that the amount was given to him in cash and no receipt voucher was issued by him. Mr. Dagli has further submitted that in fact entire amount was paid back. He relied upon Section 313 statement of the accused at Exh.11, wherein it is specifically stated that apart from Rs.60,000/- even remaining amount was paid back in cash and therefore, contended that false complaint is frustrated upon him as there is no outstanding legal dues.

4.2 Additionally, Mr. Dagli has raised issue of service of notice. It is say of the complainant that at Exh.28, demand notice was given by the complainant and for which, UPC window slip (Exh.29), postal receipt (Exh.30), acknowledgment receipt (Exh.31 &32) are produced, however, none of the documents bear signature of the accused about receipt of such notice and in Section 313 statement, also it is specifically stated that demand notice was not received.

4.3 On the aspect of legal dues, it is admitted by the complainant at Exh.17, in cross-examination that Rs.60,000/- was paid back to him, though remaining amount is also paid, the complainant has mala fidely not disclosed the correct fact and has misused the cheque by subsequently depositing the said cheque in the year-2004. It is in background of such circumstances, the court below has observed that complaint is frivolous and by clever drafting, has tried to present case of existence of legal debt.

4.4 On the contention raised by the learned advocate, of accused having not entered in the witness box, it is submitted by Mr. Dagli that there cannot be any straight jacket formula that since the accused has not entered in the witness box, it is to be presumed that say of complainant is undisputed. As held in various decisions by this Court and so also by the Hon’ble Apex Court that once documents on record and evidence adduced by the complainant, if the accused is successful in raising preponderance of probabilities about non-existence of any legal liability, it is not imperative for the accused to enter in the witness box. The accused has to show the probable defence, which can also be established based on the material brought on record. In the present case, including the fact about repayment of amount already made in the year-1998 and thereafter, cheque in question being used in the year-2004, the preponderance of such probability about very factum of existence of legal debt has certainly arose.

4.5 On the issue of presumption, it is submitted that the presumption under Section 118 of the N.I. Act is rebuttable presumption. Mr. Dagli submitted that such rebuttal can also be drawn from the evidence led by the complainant. He submitted that the learned Magistrate has followed the aforesaid principles and upon appreciation of evidence, the impugned order of acquittal is recorded which is just and proper.

4.6 Learned advocate Mr. Dagli has referred to Section 138(a) of the N.I. Act and has submitted that what is relevant is the date on which, cheque in question is delivered not the date on which, the cheque is deposited. Admittedly, in the present case, the cheque is of the year1998, deposited in the year-2004, where making date of 31.12.2004. What was relevant is date on which cheque was given, signed and not the date on which cheque was deposited.

4.7 In support of his submissions, learned advocate Mr. Dagli has relied upon following authorities:

(i) In the case of Structures Steel (H.U.F.) vs. R.S. Lath Education Trust and Ors. reported in (2008) 5 AIR (Bom) (R) 247, wherein it is held that the counting of the beginning date of the cheque for the purpose of validity of cheque up to six months has to be counted from the date inscribed on it.

(ii) In the case of Javid Ahmed vs. Syed Azmathulla Hussaini reported in (1993) 0 CrLJ 2359, wherein the Hon’ble Andhra Pradesh High Court has held that a post dated cheque for the purpose of clause (a) of the proviso appended to Section 138 of the Act has to be treated to have been drawn on the date it is delivered to the payee and not to be treated as drawn on the date it bears.

(iii) In the case of G. Thirugnanasambandam vs. R. Shanmugasundaram reported in (1992) 73 CC 401, wherein High Court of Judicature at Madras has held that to constitute an offence, the cheque has to be presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier, and that in case when such requirement is not fulfilled, then no offence under Section 138 of the N.I. Act, is made out.

(iv) Learned advocate Mr. Dagli has relied upon paragraph Nos.30, 32, 34 and 35 in the case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54, [LQ/SC/2008/54] wherein Hon’ble Supreme Court has held that the standard of proof required on the part of the accused is in nature of “preponderance of probabilities”. The inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which, the accused relied.

(v) In the case of Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu Firm and Others reported in (2008) 7 SCC 655, [LQ/SC/2008/1276] wherein the Hon’ble Supreme Court has held that the initial burden is on the defendant to show the existence of consideration as highly improbable or doubtful or illegal, if this burden is discharged the onus shifts on the complainant.

4.8 By making the aforesaid submissions, he urged this Court to dismiss the present appeal.

5. In the rejoinder, learned advocate Mr. J.R. Shah appearing for the appellants has tried to distinguish the aforesaid authorities relied upon by learned advocate on record for the respondent-accused.

5.1. In the case of Krishna Janardhan Bhat (supra), learned advocate Mr. J.R. Shah submitted that the defence was raised in the reply given to the notice. Thus, in the aforesaid case, the complainant was aware about the defence put forward by the accused. He has further submitted that the courts below had taken notice of the provisions of Income Tax Act, which provides that any advance taken by way of loan of more than Rs.20,000/-, has to be made by way of account payee cheque only. In light of the aforesaid facts, the court noticed that the accused was not required to offer himself for examination at the evidence stage for discharging the burden of proof placed upon him under statute.

5.2 Further by referring to the decision of the Hon’ble Supreme Court in the case of Mallavarapu Kasivisweswara Rao (supra) is concerned, learned advocate Mr. J.R. Shah has submitted that it was a case arising out of civil suit proceedings where the court had no occasion to examine the provisions of Section 139 of the N.I. Act. The suit filed by the appellant for recovery of an amount with interest, which came to be decreed by the learned Sessions Judge and was affirmed by the High Court in appeal. In civil appeal arising out of the order of High court, the Hon’ble Supreme Court in the back drop of the facts noticing that there was no specific denial of the execution of the pronotes and the allegations made in the notice, proceeded to examine the presumption appearing in Section 118 (a) of the N.I. Act.

5.3 He therefore, submitted that the aforesaid decisions would not be applicable in the present case, more particularly, when no material is produced on record by the accused and at no stage in crossexamination or even in Section 313 of Cr.P.C statement, any defence is raised disputing the execution of the instrument. He therefore, reagitated that the burden on the accused was not shifted as no probable defence has emerged on record.

D. Question which falls for consideration of this Court:

6. Having heard the learned advocates appearing for the respective parties and having perused the original record and proceedings of the criminal case and the various authorities relied upon, the question which falls for consideration of this Court in the present appeal is whether the learned Magistrate committed error in recording finding that the complainant was having custody of the cheque on the date when the transaction was entered upon between the parties In other words, whether the learned Magistrate committed error in treating the disputed cheque as “security cheque”

6.1 The second question which falls for consideration is that whether the complainant be treated as “holder of cheque” on the date of presentation viz. 31.12.2004, to attract the offence under Section 138 of the N.I. Act

7. Before proceeding with the merits of the case, the findings and the reasons recorded by the learned Magistrate while recording acquittal is required to be looked into.

7.1 The learned Magistrate, upon appreciation of the material, which has come on record has recorded specific findings that the date “31.12.2004” is inscribed in handwriting subsequently, on the disputed cheque, which already bears printed year preceding with figure “19”. Therefore, the inference can be drawn about blank cheque being in custody of complainant in the year-1998, which has been misused by inscribing date of issuance as “31.12.2004.”

7.2 Secondly, the Court has noticed that part payment of Rs.60,000/- was received by the complainant, however, in crossexamination, the complainant has failed to disclose the date on which, such repayment or rather part payment was received.

7.3 The learned Magistrate has further recorded that the complainant in his cross-examination has admitted that amount and date in the disputed cheque were entered by the accused. On appreciation of the aforesaid evidence of complainant, the learned Magistrate has recorded finding that non-disclosure of the date of repayment of amount of Rs.60,000/- leads to the inference that the complainant was having custody of undated blank cheque as on the date of transaction, which is 15.12.1998.

7.4 Upon recording of such facts, the learned Magistrate has arrived at conclusion that the cheque was handed over to the complainant by the accused as the security cheque for future debt, in case, the accused failed to make good the payment as agreed. Having noticed the aforesaid findings, the learned Magistrate has taken into consideration the issue of limitation period by observing that the original transaction relates to year-1998, whereas the disputed cheque bears the date of issuance as 31.12.2004. Thus, the learned Magistrate has treated such transaction as “time barred debt”, which is not enforceable in eye of law. Hence, the learned Magistrate has concluded that the offence under Section 138 of the N.I. Act is not attracted.

E. The Analysis:

On careful examination of evidence, which has come on record, the following attending circumstances have transpired, which cannot be ignored by this Court.

8. First Issue:

8.1. The learned Magistrate has examined the disputed cheque wherein in the column of date of cheque, the printed figure “19” appears, whereas the endorsement of date “31.12.2004” is inscribed on the cheque. This has led the learned Magistrate to draw inference that the cheque was given in the year-1998. It was the date on which, the hand loan was given by the complainant.

8.2 Indisputably, the hand loan of an amount of Rs.2 Lakhs was derived by the accused from the complainant, which is evident from the fact that the amount was received by the accused pursuant to the realization of the cheque dated 15.12.1998 handed over by the complainant to the accused. The aforesaid fact has emerged on record as contended by the complainant in his complaint as well as in examination in chief. Even in Section 313 statement, very specific question has been put to the accused with regard to the aforesaid fact wherein the accused has also confirmed this fact.

8.3 It has also come on record that amount of Rs.60,000/- was repaid by the accused as is evident from the admission of the complainant in his cross-examination. The complainant has also admitted that such amount was received by him in cash. He has also further admitted in his cross-examination that having received such part payment, no voucher or any receipt was issued by the complainant to the accused. Surprisingly, in cross-examination, though a very specific suggestion was given by the defence counsel to the complainant about date of cheque, the complainant has admitted that “it is true that amount, date and name in the cheque was entered by the accused in his presence”.

8.4 In my opinion, this goes to suggest that the cheque was drawn on 31.12.2004, it is the date inscribed on the cheque. The learned Magistrate failed in trap by observing as to what prevented the complainant to offer such fact right from the inception while giving legal notice as well as in his complaint. In fact, if one looks at the content of the complaint, it is specifially pleaded/alleged that “recovery being made by the complainant, the accused had made repayment of Rs.60,000/- in cash and remaining amount of Rs.1,40,000/- was offered by handing over cheque bearing No.70781 dated 31.12.2004”

8.5 On further examination of the legal notice, this Court finds that the complainant has remained completely silent on the transaction of hand loan of an amount of Rs.2 Lakhs made in the year-1998 to be specific on15.12.1998 and the fact of repayment of part amount of Rs.60,000/-. In such circumstances, another possible view, which emerged on record is that the disputed cheque was issued by the bank of the accused in the year starting with figure”19”. The date entered in the column of the cheque, which is in the hand written as dated “31.12.2004” which seems to have been entered upon subsequently. As admitted by the complainant that amount, date and name are entered by the accused in his presence, the Court is of the view that attending circumstances have led support to the probable defence of accused about misuse of blank cheque. As emerged on record, the court has rightly shifted the burden upon the complainant to prove his case beyond reasonable doubt. Considering the defence raised by the accused and the circumstances with regard to issue of the date on which cheque was issued becomes relevant facts to be proved by the complainant. The Court has rightly treated the disputed cheque as “security cheque”.

8.6 In my opinion, on evaluation of the cross-examination of the complainant, it has come on record that the date, amount and name in disputed cheque was entered by the accused. Such admission of part of complainant indicate the date “31.12.2004” being entered by accused.

8.7 Even otherwise, if one looks at provisions of Section 138(a) of the Act, it prescribes the date inscribed on cheque as the date on which cheque was drawn. The same is provided for the purpose of determining validity of the cheque. However, the fact remains that the issuance of cheque in light of the aforesaid provisions shows as “31.12.2004”.

8.8 The submission of learned advocate Mr. J.R. Shah for considering such date “31.12.2004” to be of relevancy for the purpose of acknowledgment of date, is further considered while deciding second issue. Even otherwise, so far as first issue of “Security Cheque” or “Blank Cheque being misused” is concerned, the same looses its significance in light of the reasons recorded by me while answering second issue on hand is concerned.

9. On the “Second issue” of “time barred debt” is concerned:

9.1 According to learned advocate Mr. J.R. Shah appearing for the appellants-original complainant, the date of issuance of cheque is 31.12.2004. As per his submission, once the cheque was drawn there was acknowledgment of the debt and unless contrary is proved by the accused, the presumption arose with regard to the fact that the cheque has been given or drawn for consideration as provided under Section 118(a) and the complainant is “holder” of such cheque for discharge of debt or liability.

9.2 On the other hand, learned advocate Mr. Dagli appearing for the respondent-accused, by referring to the authorities mentioned earlier as the cheque being handed over as security cheque way back in the year-1998, which being misused by the complainant though the amount outstanding being realized, and its presentation in the bank in the year-2004, makes such transaction invalid in the eye of law as the cheque ceased to be a negotiable “instrument” in view of Section138 of the N.I. Act.

9.3 Indisputably, the hand loan of an amount of Rs.2 Lakhs as emerged on record relates to the date of transaction as 15.12.1998. The date inscribed on the disputed cheque goes to indicate that the cheque was drawn on 31.12.2004. If one accepts the case of the complainant that by the issuance of cheque on 31.12.2004, there was acknowledgment of the debt by the accused, and hence, a fresh cause of action for the purpose of limitation is available to the complainant, the same is contrary to the legal settled position. Similar issue arose for consideration before the Hon’ble Apex Court in the case of Sasseriyil Joseph vs. Devassia rendered in SLP (CRL) No.1785 of 2001 rendered on 10.09.2001. So far as the reliance placed by learned advocate Mr. Shah appearing for the appellants in the case of A.V. Murthy (supra) is concerned, it was a case where the appellant and his friends have advanced the loan about four years back and the “respondent-accused had acknowledged this liability in his balancesheet”. In such circumstances, even for the purpose of filing civil suit, such debt or liability would not be treated as barred by limitation. The copy of balance-sheet dated 31.03.1997 was produced before the trial court, it was in the background of these facts, the Hon’ble Supreme Court held that the criminal proceedings should not have been terminated by the High Court at threshold while exercising powers under Section 482 of Cr.P.C. The Hon’ble Supreme Court, therefore, quashed and set aside the order passed by the learned Single Judge of the High Court and allowed the appeal and remanded the matter back to the Magistrate to proceed with the complaint in accordance with law.

9.4 In the present case, at no stage, evidence has been adduced by the complainant to show that within the prescribed period of limitation, the debt was acknowledged by the accused in writing, which is required under Sub-Section (3) of Section 25 of the Indian Contract Act. As noticed at Paragraph No.5.3 in the case of Sasseriyil Joseph (supra) wherein the Hon’ble Supreme Court, in no uncertain terms, after perusing the decision of the Kerala High Court in Criminal Appeal No.161 of 1994 and after finding that the language in Section 138 of the N.I. Act, was clear and unambiguous, confirmed the judgment of the Kerala High Court. In the said judgment of the Kerala High Court in Paragraph Nos.6 and 7, it is held as under:

“6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under Section 138 of the Negotiable Instruments Act. In this case, the complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgement of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of Section 25(3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque (debt) is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from Section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer to the payee. The explanation to Section 138 defines the expression debt or other liability as a legally enforceable debt or other liability. The explanation to Section 138 reads as under :-

Explanation :- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability. 7. Thus, Section 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time barred debt is a legally enforceable debt. In this connection, it is also relevant to note the decision of the Andhra Pradesh High Court reported in Girdhari Lal Rathi v. P.T.V. Ramanujachari 1997 (2) Crimes 658. It has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Negotiable Instruments Act simply on the ground that the debt was not legally recoverable. I am fully in agreement with the view expressed by the learned Judge in the decision referred to above. “

17.2 Thus, the above discussion would answer even the argument in relation to section 25(3) of the Indian Contract Act apart from the argument in relation to enforceability of the debt and maintainability of the complaint under section 138 of the N.I. Act. “

9.5 In light of the aforesaid legal position and on the basis of evidence on record, the period of limitation of three years is to be computed as provided under Article 19 of the Limitation Act, which provides for the money payable within three years from the date of loan. The date on which loan was advanced, makes the present transaction time barred as on 31.12.2004. Admittedly, the date of loan as emerged on record is 15.12.1998 and by applying the prescribed period of three years, as per Article 19 of the Limitation Act, would come to an end on 15.12.2001, whereas the disputed cheque bears the date 31.12.2004. In absence of any document being brought on record by the complainant that the debt was acknowledged during the prescribed period of limitation, the cheque was time barred. In light of the decision of the Hon’ble Supreme Court in the case of Sasseriyil Joseph (supra), the same cannot be treated “as legally enforceable debt” or other “liability” as appeared in the Explanation attached to Section 138 of the N.I. Act.”

F. The Conclusion :

10. In view of the discussions made above, the appeal is found to be devoid of any merit and hence, the same stands dismissed. Record and proceedings be sent back to the concerned court forthwith. Bailable warrant issued upon respondent-original accused hereby stands cancelled.