IMPORTANT POINT
In case a cheque is issued for a time barred debt and it is dishonoured, accused cannot be convicted u/ s 138 of Negotiable Instruments-Act.

Krishna Saran Shrivastav, J. -This is an appeal against the acquittal of the first respondent of the charge levelled against him under Section 138 of Negotiable Instruments Act.

2. The case of the appellant-complainant in brief is that he deals in manufacture of General Mercandise and had business dealings with the first respondent who owed a sum of Rs. 5,45.000/ - as per the settlement of account did, 31st March. 1990. The first respondent, in discharge of his liability to pay the said amount. issued a cheque for Rs. 5.45.000/ -drawn on Canara Bank. Sultan Bazar. Hyderabad. The appellant presented the cheque with his banker which sent for realisation to the bank of the first respondent but it was dishonoured, and therefore, the appellant issued a registered notice which was served on the first respondent on 26-6-1990 But the first respondent/accused did not make the payment and therefore, he is liable to be convicted under Section 138 of the Negotiable Instruments Act.

3. Charge under Section 138 of the Negotiable Instruments Act was framed and explained to the first respondent-accused who denied the guilt. He examined himself in defence.

4. In trial Court, on assessment of the evidence on record, found that the appellant has failed to establish that the first respondent-accused has issued the cheque in question in discharge of his liability to pay any amount to the appellant. It also reached to the conclusion that by the time the cheque was alleged to have been issued, the first respondent-accused had closed his Account with the Canara Bank. The lower Court on assessment of the evidence on record disbelieved the case of the appellant and acquitted the first respondent accused.

5. Feeling aggrieved by the impugned judgment of acquittal, the complainant has preferred this appeal.

6. The appellant examined him self as P.W.1. He has deposed that ill the year 1985 the first respondent -accused has taken a loan of Rs. 2.00.000/- from him and his family members by executing a receipt evidencing loan. He again took a loan of Rs. 1.00.000/- from his family members and issued receipts to them. About after one and a half year, the first respondent-accused settled the account and gave a cheque for Rs. 5.45.000/- drawn on Canara Bank, Hyderabad. In the complaint, the appellant has, not stated regarding the allegation that the accused had borrowed Rs. 2.00,000/- atone time and another amount of Rs. 1,00.000/- on another occasion from him and his family members or had executed receipt evidencing the same. The case of the appellant, as set out in the complaint is that he had business dealings with the first respondent-accused and after settling the account, the accused-respondent has issued a cheque for an amount of Rs. 5,45,000/-. It is well-settled that no amount of evidence can be looked into without allegations made in the complaint. The omission in the complaint regarding advancing of amount of Rs. 3,00,000/- on two different occasions is a material omission amounting to contradiction and It makes the statement of P.W. 1 doubtful whether an amount of Rs. 3,00,000/- had been advanced by him to the first respondent-accused. It is also pertinent to note that original receipts have not been filed by the appellant and instead xerox copies of certain receipts have been filed by him the explanation given by P.W. 1 during his examination that at the time of issuing the cheque, the first respondent-accused has taken back all the original receipts has not been accepted by the trial Court and rightly because no such allegation has been made in the complaint. The copy of the receipt Ex. P.7 shows that It was issued in favour of one Laxminarayana Reddy evidencing a loan of Rs. 15,000/-. But, P.W. 1 in cross-examination admitted that he did not know any person by name

Laxminarayana Reddy.

7. The alleged loan was advanced in the year 1985 and the cheque was issued in the year 1990. By the time the cheque was issued, the debt appears to have been barred