A cheque issued for a time-barred debt does not constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act, leading to no offence being committed.

JUDGMENT :

Nisha M. Thakore, J.

1. This appeal is filed at the instance of the original complainant under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order dated 11.05.2007 passed by the 9th Additional Senior Civil Judge and Judicial Magistrate, First Class, Nadiad in Criminal Case No.505 of 2006. By the said judgment and order, the learned Magistrate has recorded acquittal of the present respondent - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act").

2. The case alleged by the original complainant before the trial Court in brief is reproduced as under:

2.1. The present respondent no.2 was in need of financial help and had approached the original complainant by borrowing an amount of Rs.1 lakh in the year 2002. A separate document in writing on stamp paper of Rs.100/- was executed by the respondent no.2 in favour of the original complainant acknowledging the fact of borrowing the amount of Rs.1 lakh from the original complainant. Such deed was executed in presence of the witness on 5.6.2002. At that stage, the cheque bearing no.458070 drawn from the account of the respondent no.2 i.e from Bank of Baroda for an amount of Rs.1 lakh was handed over to the original complainant as security cheque. The said cheque was without incorporation of the details of the name of the holder and the date. It was agreed between the parties that the original complainant shall intimate one month in advance as and when the need arose for realization of the borrowed amount and it was assured by the respondent no.2 of repayment of such borrowed amount.

2.2. It is the case of the complainant that the need for money arose and the complainant had approached in search of the accused at his clinic. The complainant had visited the accused at his clinic at Vatva on two to three occasions and had raised demand for the dues. At that stage, the accused had endorsed the date of 20th November 2005 in the cheque handed over to the complainant and had assured of realization of the outstanding amount on presentation of such cheque. The complainant had accordingly presented the cheque dated 28.11.2005 with his bank i.e. Indian Bank, Santram Branch, Nadiad. The said cheque was returned back by the concerned Bank on 29.11.2005 with an endorsement of insufficient funds without realization of the borrowed amount. Such information was shared by the Bank through a return memo. In such circumstances, the complainant was constrained to issue legal notice dated 12.12.2005 which was duly served by registered Post AD as well as UPC whereby demand was raised about repayment of the outstanding amount within a period of 15 days. Though such notice was duly served upon the respondent on 20.12.2005, the respondent had failed to respond to such notice or to make any payment. On completion of the statutory period, the complainant had proceeded to lodge the complaint on 27.01.2006 under Section 138 of the Negotiable Instruments Act. The said complaint was registered as Criminal Case No.505 of 2006.

2.3. Upon considering the verification of the complainant and noticing the compliance of the statutory provisions of maintainability of the complaint, the learned Magistrate by order dated 27.01.2006 issued summons upo