The criminal appeal under Section 378(4) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 30.10.2001, in C.C.No.51 of 2000, on the file of the learned V Metropolitan Magistrate, Visakhapatnam, whereunder and whereby, the second respondent/sole accused was found not guilty of the offence punishable under Section 138 read with 142 of the Negotiable Instruments Act, 1881 (For short ‘the Act’). Challenging the same, the complainant firm filed the present appeal.

2. The brief facts that are necessary for the disposal of the present appeal may be stated as follows:

The accused, along with his father-I.J. Subrahmanyam, mother-Sarojini and brother-Venkata Chalapathi Rao, jointly borrowed an amount of Rs.23,500/- from the complainant firm on 30.06.1995, promising to repay the same with interest @ 36% per annum. Subsequently, father of accused paid an amount of Rs.500/- on 31.03.1998 and made an endorsement for the part payment on the reverse of the promissory note. In spite of several demands, the accused did not discharge the debt, but issued a cheque, dated 05.07.1999, bearing No.0373173, drawn on Vysya Bank Limited, Surya Bagh Branch, Visakhapatnam, for Rs.75,000/- towards part payment as against the amount due on the promissory note, which works out to Rs.81,551/- by 09.07.1999. When the complainant firm presented the said cheque for encashment through its banker-Indian Overseas Bank, Visakhapatnam, it was returned unpaid and dishonoured with an endorsement ‘account closed’. Then the complainant firm got issued a statutory legal notice, dated 09.07.1999, calling upon the accused to repay the entire amount due to the complainant firm. The accused did not choose to repay the amount nor send any reply. Hence, the complaint.

3. When the accused is examined under Section 251 Cr.P.C. for the offence under Section 138 read with 142 of the Act, he pleaded not guilty.

4. To substantiate the case of the complainant firm, the prosecution examined P.Ws.1 to 3 and got marked Exs.P1 to P11.

5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no oral evidence was adduced except marking Ex.D1.

6. The trial Court, after appreciation of evidence on record, came to the conclusion that the debt is time barred and therefore, there was no legally enforceable debt and so, the cheque was not given for any legally enforceable debt, and accordingly, acquitted the accused. Challenging the same, the present criminal appeal is filed.

7. Now, the point for determination is whether the complainant firm proved its case beyond all reasonable doubt for the offence under Section 138 read with 142 of the Act and whether the judgment of the trial Court is correct, legal and proper?

8. Learned counsel appearing for the appellant contended that the joint family consisting of the accused, his father, mother and brother jointly borrowed and executed a promissory note in favour of the complainant on 30.06.1995 and that on 31.03.1998, the father of the accused paid an amount of Rs.500/- and made an endorsement on the back of pronote, and the accused himself and his brother executed Ex.P11-letter, duly acknowledging the part payment, and so, a fresh limitation of three years starts from 31.03.1998; that on 05.07.1999, a cheque was given by the accused to discharge the legally enforceable debt, that P.W.1 was one of the partners of the firm and act of the firm includes an act of any one of the partner; that the trial Court committed an illegality in not calculating the compound interest on the debt borrowed on 30.06.1995 and that the calculation of principal and interest due under promissory note by the complainant firm would clearly go to show that as on the date of giving of cheque, an amount of Rs.81,551/- was due and towards the part