( 1 ) THE petitioner herein, is an accused who has been convicted and sentenced under Section 138 of the Negotiable instruments Act, 1881, (act, for short), by the learned J. M. F. C. , Mapusa. by Order dated 29. 07. 2005 and which Order in appeal has been confirmed by the learned Assistant Sessions judge, Mapusa. The controversy in this revision is in relation to the explanation below section 138 of the Act, which reads as follows:-"explanation:- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. "

( 2 ) SOME facts are required to be stated to dispose of this revision.

( 3 ) THE Complainant (respondent herein), is a Society having its business of advancing loans for the purpose of construction to its members, and, the accused is a member of the said Society. The accused and his wife had availed a loan of Rs. 3,55,000/- on 05. 11. 1996 with a condition to repay the same with interest at the rate of 18% or higher rate of interest plus 0. 6% along with charges which might have been incurred by the said complainant. The Complainant had called upon the wife of the accused for repayment of overdue installments and on or about 30. 09. 2003, the accused and his wife executed an affidavit/undertaking admitting the said loan amount and confirming the outstanding balance of Rs. 12,95,565/-including interest as on 30. 12. 2003 and along with the said affidavit/undertaking, the accused issued three cheques dated 30. 10. 2003 for Rs. 5,00,000/-, 30. 11. 2003 for Rs. 4,00,000/- and 30. 12. 2003, for Rs. 3,95,565/-, drawn on Syndicate Bank, mapusa, which the Complainant stated were drawn in his favour in discharge of legally recoverable debt towards the repayment of the said loan including interest and, as per the letters of the accused dated 29. 11. 2003 and 27. 12. 2003, the cheques were deposited on 31. 01. 2004 only to be returned dishonoured on 16. 02. 2004 with endorsement that the funds were insufficient, whereupon the Complainant through his Advocate by notice dated 03. 03. 2004, demanded payment of the said sum of Rs. 12,95,565/-, but the accused failed to comply with the same within a period of 15 days as stipulated therein, and hence the complaint.

( 4 ) ADMITTEDLY, the loan was taken on 05. 11. 1996, payable with interest, as aforesaid and the cheques came to be issued on 30. 09. 2003, 30. 10. 2003, 30. 11. 2003 and 30. 12. 2003, which were issued much beyond a period of three years. There appears to be preponderance of judicial opinion in support of the view that only if the cheque is issued in discharge of a legally enforceable debt or other liability that Section 138 of the Act is attracted but if a cheque is issued for the discharge of a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Act. This view was first taken in girdhari Lal Rathi Vs. P. T. V. Ramanujachari (1997 (2) Crimes 658), then by this Court in the case of Smt. Ashwini satish Bhat Vs. Shrijeevan Divakar lolienkar (1999 (1) G. 1. T. 408) and Joseph vs. Devassia (2003 K. 1. T. (3) 533, and it appears that the last Judgment also has the imprimatur of the Apex Court in Special Leave to Appeal (Cri) No. 1785/2001, which was dismissed by Order dated 10. 09. 2001 and, therefore, needs to be followed by this Court. However, the question is as to what is the legal effect of the said declaration/affidavit given by the accused prior to giving of the said three cheques ?

( 5 ) THAT takes us to Section 25 of the indian Contract Act, 1872, which provides that an agreement without consideration is void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation of law. It further provides that an agreement made without consideration is void, unless - (1 ). . . (2 ). . . (3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specia

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