JUDGMENT :

K.R. Shriram, J.

1. This is an appeal impugning an order and judgment dated 16.9.1998 passed by the Addl. Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai in a trial for commission of an offence punishable under Section 138 of the Negotiable Instruments Act 1881.

2. The complainant who is the appellant herein was an unpaid vendor. The complainant claims to have supplied various quantities of paints during the period 1992 and indisputably the last supply was on or about 30.6.1992. Seven bills for a total sum of Rs. 1,38,897/- was raised on the accused.

On 15.5.1997 almost 5 years after the last supply was made, the accused issued cheque bearing no. 548403 for Rs. 1,38,897/- which cheque was dishonoured on the same day, i.e., 15.5.1997 on the ground "account closed". The complainant therefore sent notice to the accused vide Advocate's Notice dated 23.5.1997 which has been received by the accused and the accused has replied denying liability, which reply was received after the complaint was filed. But since no reply was received within 15 days as contemplated under Section 138 of the Negotiable Instruments Act, 1881, this complaint was filed.

3. The particulars of the offence was read over to the accused and explained to the accused who pleaded not guilty and claimed to be tried. During the trial, complainant has examined himself and produced 10 documents. During the cross-examination, two further documents have come on record, one of which is reply received by the complainant to the statutory notice after filing of the case. Another document is summons issued under Section 91 of Cr.P.C. to the bankers which also consists of 5 letters signed by the Manager of the bank.

4. Apart from various arguments which I find have been raised in the written submissions by the Advocate for the accused and the complainant, the main thrust of the accused was that the last transaction was on 30.6.1992, cheque was issued on 15.5.1997 and hence the debt or the liability to the complainant is time barred. And as it is time barred, it is no more a legally enforceable debt or other liability as required under Section 138 of the Negotiable Instruments Act 1881 and hence the complaint was not tenable. The trial Court in view of this legal point raised by the accused, decided to consider whether the debt or the liability in question was legally enforceable and only if the answer to that issue was in the affirmative, felt the need to consider whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881. The trial Court relying on the judgment of a single Judge of the Andhra Pradesh High Court in the case of 1998 Bank Journal 127 Equivalent citations: 1997 (1) ALT Cri. 509, 1998 (94) Comp.Cas. 139 b AP, Girdhari Lal Rathi Vs. P.T.V. Ramanujachari & Anr. concluded that in case 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 debt was not legally enforceable. In view of this conclusion, the trial Court did not consider whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881 and dismissed the complaint. This is the order that is impugned in this appeal.

5. The accused has not been appearing for quite some time. The Court notings' indicate that warrant of arrest under Section 390 of Cr.P.C. is duly executed and original accused has been released on bail. There is an Advocate Mr. Tushar Joshi who had entered appearance for the accused and his name also appeared in the cause list today. He is not present either.

6. Mr. Nadar appearing for appellant submitted that the Division Bench of our Court in 2012 ALL Mr. (Cri.) 3656 Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt & Anr. has taken a view contrary to the view taken by Andhra Pradesh High Court. Mr. Nadar submitted that Division Bench has