ORAL ORDER

1. This application is filed seeking leave to prefer an appeal against the judgment and order of acquittal passed by the learned Additional Chief Metropolitan Magistrate Court No.30 (N.I. Act) in Criminal Case No.430 of 2019 dated 11.04.2023.

2. It is the case of the complainant in the complaint that, complainant is doing business of transport and the accused is proprietor of M/s. Speed Roadways of India and they were in the same business, therefore they were known to each other. It is the case of the complainant that for making payment of debt of CITI Bank, an amount of Rs.4,80,000/- was lent by the complainant to the accused on 17.04.2004. Up to the year 2009, the respondent-accused neither paid principle amount nor paid the interest as agreed, therefore complainant approached the respondent-accused and demanded the amount which was borrowed.

2.1. For repayment of the aforesaid amount, cheque bearing No.875464 dated 03.01.2009 was issued for the amount of Rs.10,49,184/- which was dishonoured on depositing and therefore after following the procedure prescribed under the Negotiable Instruments Act (hereinafter referred to as the “N.I.Act”), a private complaint came to be filed. On filing the complaint, the respondent-accused appeared and has denied the debt, however he did not produce any evidence in his defence.

3. After considering the cross examination of the complainant and the other evidence, the learned trial court has dismissed the complaint on the ground of time barred debt.

4. Heard learned advocate Mr.Narendra Jain assisted by learned advocate Ms.Shivani for the applicant-original complainant.

4.1. Learned advocate Mr.Narendra Jain submits that no cross examination was conducted by the respondent- accused to show that the debt is time barred debt, However, learned trial court acquitted the respondent- accused on that ground, without considering the evidence on record.

4.2. Learned advocate Mr.Narendra Jain submits that the time barred debt is a mix question of law and fact which is to be established during the trial by leading the evidence. However the learned trial court, though respondent-accused has not laid any evidence has dismissed the complaint on the ground of time barred debt.

5. Learned advocate Mr.Narendra Jain relies on the decision rendered by the Apex Court in the case of K.Hymavathi Versus The State of Andhra Pradesh & Anr. wherein the Apex Court has stated that, complaint cannot be dismissed threshold and the question of time barred debt is to be decided by the learned trial court by scrutinizing the evidence.

6. Learned advocate Mr.Narendra Jain submits that though signature on the cheque was not disputed, neither the issuance of cheque was disputed, learned trial court has acquitted the respondent-accused without any cogent reasons and therefore this application for seeking leave to prefer an appeal requires to be allowed and appeal is required to be admitted.

7. Having considered the judgment of Apex Court and the record and proceedings of the instant case, it transpires that the amount was borrowed by the respondent- accused on 17.04.2004 and for repayment of the aforesaid amount, cheque was issued on 03.01.2009 i.e. after a period of three years. It is true that no question was put during the trial by the respondent-accused to establish his defence about the time barred debt. However as this question is a legal question, even though it was not raised or not established by the respondent- accused, the court can certainly decide the case on the provisions of the Limitation Act, Contract Act as well as the Negotiable Instruments Act, which are reproduced herein below:-

Limitation Act “S. 3 - Bar of limitation Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.”

S. 4 - Expiry of prescribed period when court is closed Whe