Dishonour of Cheque--Time barred Debt--Complaint not maintainable as liability cannot be said to be legally enforceable liability.

Mr. A.B. Chaudhari J. (Oral):- Being aggrieved by the order of acquittal dated 23.09.2004 passed by the learned Sub Divisional Judicial Magistrate, Jalalabad in case No.510- 2/29.9.97/22.8.2001/3 by which the learned trial Court acquitted the respondent for the offences under Section 138 of the Negotiable Instruments Act, 1881 (for short “the N.I. Act”) and under Section 420 of the Indian Penal Code (for short “IPC”).

2. None has appeared for the appellant.

3. Mr. C.M. Munjal, Advocate has appeared on behalf of the respondent.

4. With the assistance of the learned counsel for the respondent, I have gone through the entire record. Apart from the reasons furnished by the learned trial Court which I would quote afterwards, I find from the record that the notice Ex.P-2, under Section 138 of the N.I. Act issued by Surender Bajaj, Advocate, Fazilka shows that Para No.1 that the respondent/accused had taken loan of Rs.25,000/- from the appellant/complainant on 27.07.1990 by way of friendly loan through cheque bearing No.638731 dated 27.07.1990 drawn on State Bank of India Jalalabad. In para no.3, it is mentioned that in order to discharge legal liabilities and duty, the respondent/accused had given a cheque in the sum of Rs.25,000/- bearing cheque No.435603 dated 30.08.1997 (Exh. P- 4/ P-8). The cheque was thus put in the bank on the said cause of action, namely 30.08.1997, the date of the cheque and accordingly, the claim was made by filing the complaint under Section 138 of the N.I. Act.

5. As rightly contended by learned counsel for the respondent in the wake of the admitted facts namely, a friendly loan was taken on 27.07.1990, whereas the cheque for return thereof was of dated 30.08.1997, coupled with the admitted fact that the cheque that was given was blank and signed by the respondent the claim was obviously barred by law of limitation. It is well settled legal position that in any proceedings, the law of limitation will have application qua the Courts of law. Therefore it cannot be gainsaid that because proceedings under Section 138 of the N.I. Act were filed before the Court of law, namely JMIC for recovery of money and the proceedings being of quasicriminal nature, the law of limitation would not apply. Even in the writ jurisdiction, the Apex Court has held in the Lipton India that the writ jurisdiction is also subject to law of limitation particularly in respect of money claims. Applying the same analogy when admittedly loan was taken in the year 1990, the same could not be claimed by bringing an action through cheque dated 30.08.1997 for recovery of the amount of Rs.25,000/- under the cheque. Hence, I hold that the action in question was clearly barred by law of limitation. Consequently, the liability under cheque could not be said to be a legally enforceable liability, and, therefore the complaint was not maintainable.

6. Apart from the above, what I find is that the trial Court has recorded a finding about the proof of service of statutory notice under Section 138 of the N.I.Act that has been discussed in paragraph 23. I quote the following relevant portion from the said paragraph:-

23. “Now coming to the service of notice upon the accused, it is essential to mention in the complaint that complainant has issued notice to the accused in writing requiring him to make payment of the amount of the cheque within 15 days of the date of receipt of notice. It is essential to mention that notice was sent by registered post or UPC or by other modes. In the present complaint it is alleged by the complainant in para no.6 that notice of demand as required by law is also served upon the accused on 03.09.1997 under registered cover but till today the accused had familed to make payment..................

............................ In the present case that complainant stated in his statement that he had sent notice through Sh. Surinder Kumar Bajaj Advocate to the accused and copy of that notice is Exh.P-9. The complainant did