Time-barred debt cannot be considered as a legally enforceable debt or liability under section 138 of the Negotiable Instruments Act.

GAIKWAD M.G., J.: - Heard learned Advocate Shri N.V. Gaware appearing for the applicant.

2. By preferring this application, complainant Society seeks leave to prefer an appeal against the order of acquittal of respondent No. 1 for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act"), passed by learned Judicial Magistrate First Class, Karjat in S.T.C. No. 915/2005.

3. The applicant/complainant lodged a complaint with allegations that the complain. ant Society advanced loan of Rs. 32,664/- to the accused on 11-2-2002. The accused did not repay that loan amount and the dues outstanding were Rs. 55,990/-. On consistent demand from the complainant Society, the accused drew a cheque dated 31-7-2005 in favour of the complainant Society. Said cheque was presented in the bank on 9-8-2005. However, it was dishonoured on account of insufficient funds. The complainant received the intimation of dishonour of the cheque on 11-8-2005 and then, issued a notice on the same day demanding the amount from the accused. Accused received this notice on 24-8-2005, but did not make payment. Within stipulated time, the complaint came to be filed.

4. At the trial, the accused put forth a defense of denial.

5. The complainant to prove his case examined himself and according to him, the cheque was issued to discharge the legal liability. The defence suggested on behalf of the accused was that the cheque in question was obtained for time-barred debt. He has denied that he had borrowed the loan on 11-2-2000 and it was to be repaid within two years which period expired on 11-2-2002. Thereafter, the cheque in question was obtained on 31-7-2005. In view of the admission of the complainant that this loan was advanced in 2000 and the cheque being issued on 31-7-2005, the trial Court observed that the cheque in question was obtained for a time-barred debt. The case made out by the complainant in its complaint and at the trial is contradicting each other. The debt being found to be a time-barred debt and the cheque being issued for time-barred debt, the finding is recorded that the cheque cannot be said to have been issued for discharge of legally enforceable debt or liability and on that count, the accused came to be acquitted. Against the said order of acquittal, the complainant intends to prefer an appeal, hence, prayed for grant of leave to prefer appeal.

6. On behalf of the complainant, learned Advocate Shri. Gaware advanced submission that even if the cheque is found to have been issued for a time-barred debt, the provisions of Limitation Act are not attracted to section 138 of the Negotiable Instruments Act. In this case, issuance of cheque being admitted and same being dishonoured, the complaint came to be filed. There is, therefore, presumption of issuance of cheque for debt or liability to the complainant as per provisions of section 139 of the Act. It is submitted that in rebuttal of presumption arising out of section 139 of the Act, the accused did not enter into witness box. Hence, the presumption cannot be said to have been rebutted.

Learned Advocate Shri Gaware also advanced submission that the provisions of Limitation Act are not attracted to the criminal case. In support of this submission, he has placed reliance on the decision of the Apex Court in the case of (A.S.K. Krishnappa Chettiar and others Vs. S.V.V. Somiah @ Navniappa Chettiar and another) reported in A.I.R. 1964 S.C. 227. In the said case, the plaintiff had obtained a decree against the defendants and had filed Execution Petition, but the Execution Petition proved to be in fructuous because first defendant was adjudicated to be insolvent. Thereafter, there was some com promise between son of the plaintiff and defendant No.2. Defendant No.2 was not found adjudicated as insolvent. Under the terms of composition arrangement, the entire property of defendants was to vest in four trustees Said composition scheme was accepted by the Insolvency Cou

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