Heard Shri. Bhobe, learned Counsel on behalf of the applicant who was he Complainant in a case filed by him under section 138 of the Negotiable Instruments Act. 1881.

2. The accused was convicted initially by the learned J.M.F.C. by Judgment!

Order dated 26.10.2007 but in appeal, the accused came to be acquitted under Section 138 of the Negotiable Instruments Act, 1881, and, against the said acquittal the Complainant seeks Special Leave to Appeal.

3. One of the grounds of acquittal, is that the subject cheque was issued by the accused in payment of a time barred debt which was not enforceable in terms of the explanation to Section 138 of the said Act. There is no dispute that the commission or brokerage fee was due and payable to the Complainant on 30.12.1999 and the subject cheque was issued on 27.08.2005 for part payment of the said fees.

4. The learned Addl. Sessions Judge by relying on the case of N. Ethirajulu Naidu Vs. K. R. Chinnikrishnan Chcttiar (AIR 1975 Madras 333) and decisions of this Court in the case of Narcndra V. Kanekar Vs. Bardez Taluka Co-op Housing Mortgage (2006(6) Bom.C.R. 874: [2006(3) ALL MR 673] and Jagadamba Parishar Sahakari Pat Sanstha Maryadit Vs. Shravan A. Ukirde (2006(2) Bom. c.R. (Cri) 960: [2007 ALL MR (Cri) 1043] came to the conclusion that mere issuance of cheque for payment of a time barred debt or liability, does not constitute a promise to pay as contemplated by Section 25(3) of the Contract Act. Indeed. in the case of Narendra V. Kanekar Vs. Bardez Taluka Coop Housing Mortgage (supra), this Court had observed thus:

"As far as mere issue of cheque is concerned, issued after the expiry of period of limitation, then there is no dispute that this Court will be bound to follow the Judgment in the case of Ashwini Satish Bhat Vs. Shrijeevan Divakar Lolienkar (supra), being a Judgment of co-ordinate bench and to that extent, the ultimate finding in the case of Dr. K.K. Ramakrishnan Vs. K. K. Parthasaradhy (supra), with respect, does not appear to be correct and, therefore, need not be followed.

9. Mere giving of cheque without anything more will not revive a barred debt, because cheque has to be given, as contemplated by the explanatory in discharge of a legally enforceable debt. There is no doubt that in terms of the Indian Limitation Act. 1963, a signed acknowledgment of liability made in writing before the expiration of the period of limitation is enough to start a fresh period of limitation. Likewise, when a debt has become barred by limitation, there is also Section 25(3) of the Contract Act, by which, a written promise to pay, furnishes a fresh cause of action. In other words, what Clause (3) of Section 25 of the Contract Act, in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below Section 138 of the Act. As far as this aspect of the case is concerned, the learned Division Bench observed that to determine as to whether or not a liability is legally enforceable. the provisions of the Contract Act, cannot be said to be irrelevant. This can provide a cause for a legal liability. Although the primary question answered by the Division Bench was that a cheque defines a promise to pay under Section 25(3) of the Contract Act, this view need not be followed by this Court in the light of the Judgment of this Court in the case of Ashwini Bhat Vs. Shrijeevan Divakar Lolienkar (supra) and the other two Judgments referred to hereinabove. "

5. The learned Add!. Sessions Judge referred to Purushottam M. Gandhi Vs.

Manohar K. Deshmukh (2007(4) Bom.C.R. 404) but did not follow the same. In the case ofPurushottam Maniklal Gandhi Vs. Manohar Deshmukh & am. (supra), the amount was to be refunded in December, 1996 and the Complainant accepted the cheque issued o