TaxTMI 
TaxTMI 
2018 (7) TMI 443
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.... accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'NI Act'). 2. Case of the appellant/complainant (hereinafter referred to as 'complainant') was that he and accused were neighbours and were having good relations with each other. According to the complainant, on 31.08.1999, accused made a request to him that he (accused) was in need of some money for the business purpose and demanded a sum of 2,00,000/- in this regard. As per complainant, he could only manage 1,66,000/-, which was accordingly lent by him to the accused on the same day free of interest in lieu of good relations with the accused. Further, as per complainant, accused promised to pay back the said amoun....
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....he complaint under Section 138 of the NI Act, bears the date 28.02.2006. Learned trial Court further held that complaint for dishonour of cheque lies only when there is a 'legally enforceable debt or other liability'. It further held that in the case in hand, civil remedy for recovery of the amount was available to the complainant within a period of three years and thereafter the suit was barred by limitation. Learned trial Court further went on to hold that this meant that legal debt or other liability could not thereafter be enforced as barred under law of limitation. On this analogy, learned trial Court went on to hold that as loan was lent on 31.08.1999 and the cheque for discharge of said loan was issued by accused on 28.02.2006, then,....
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....g beyond the stipulated period of limitation, there was no legally enforceable debt and as there was no legally enforceable debt, the accused was not liable to be punished under Section 138 of the NI Act, even if the cheque which was so given by the accused stood returned back as dishonoured. 7. In my considered view, the judgment which has been so passed by the learned trial Court is perverse and not sustainable in the eyes of law. 8. In the present case, undoubtedly the alleged loan was lent to the accused on 31.08.1999 but it is a matter of record that in lieu of discharge of the said debt, accused had handed over a cheque to the complainant on 28.02.2006. In fact, in my considered view, when in lieu of the loan which was so advanced b....
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....rt, of any debt or other liability. It is also pertinent to note that under subsection (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31st March 1997 is also produced before us. If the amount b....
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....n Nair and anr., 2007 Cri. L. J. 1486, has held as under:- "8. I shall assume that the liability, to discharge which the cheque is issued, is time barred. But even then the drawing of a cheque involves the acts of writing the cheque, signing the same and delivering the same. The act of drawal of the cheque - Section 138 applies to a cheque drawn only - does include writing the cheque, signing the same and delivery of the written and signed cheque. By the time the third conduct of delivery takes place and the drawal of the cheque becomes complete, there is significantly a promise in writing to discharge the time barred liability which squarely brings the case within the purview of Section 25(3) of the Contract Act. It is thereafter that th....