IMPORTANT POINT
If a cheque is issued for a time barred debt and it is dishonoured, accused cannot be convicted under Section 138 of Negotiable Instruments Act.

JUDGMENT

N. Krishnan Nair, J. - This appeal has been preferred by the complainant in C.C. No. 449/91 on the file of the Judicial First Class Magistrate, Mattannur, against the judgment of acquittal passed by the Additional Sessions Judge, Thalassery in Crl. Appeal No. 212/92 dated 28-8-1993. The case arose on a complaint filed by the appellant herein against the respondent alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act. After the trial, the Magistrate found the respondent (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and convicted him. He was sentenced to pay a fine of Rs. 15.000/-, in default to undergo rigorous imprisonment for three months. Aggrieved by the order of conviction and sentence, the respondent herein preferred Crl. Appeal No. 212 of 1992. The learned Additional Sessions Judge set-aside the conviction and sentence imposed upon the respondent and acquitted him. Aggrieved by the order of acquittal passed by the learned Additional Sessions Judge, the complainant has come up with this appeal.

2. The case of the complainant in brief is that the accused in discharge of a loan of Rs. 12.000/- advanced by the complainant issued a cheque dated 25-3-1991 for the said amount and the said cheque when presented for encashment was dishonoured by the Bank due to insufficiency of funds in the account of the accused. Thereafter, the complainant sent a legal notice to the accused demanding payment of the amount mentioned in the dishonoured cheque within 15 days from the date of the notice. But, the accused was not prepared to comply with the notice. Thereupon, proceedings were initiated against the accused before the Magistrate, alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act.

3. The accused pleaded not guilty. He contended that he had borrowed only an amount of Rs. 10,000/- from the complainant in October; 1987 and the said amount with interest was paid back in April. 1990. However, he admitted that he issued the cheque in question for Rs. 12.000/- under duress and threat from the police.

4. The appellant was examined as PW 1 and the Branch Manager of the Anappanthi Service Co-operative Bank was examined as PW2. Exts. P 1 to P7 were also marked on the side of the complainant. The defence examined DW1 to DW4 and marked Exts. D1 to D6.

5. The learned counsel for the appellant strongly contended that the order of the court below is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel the learned Additional Sessions Judge ought to have found that 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. He further contended that the learned Additional Sessions Judge seriously erred in finding that the accused is not guilty of the offence under Section 138 of the Negotiable Instruments Act. On the other hand, the learned counsel for the respondent supported the judgment of the lower court and urged that there is no ground for interference.

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 debt is valid and enforceable, if it is made in writing and signed