TaxTMI 
TaxTMI 
2009 (4) TMI 1035
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....ned to face the trial in this case of a charge under Section 138/141 of the N.I. Act vide order dated 21.01.2008, which order was passed by the trial court taking note of the averments made in the complaint which was filed in support of the complaint. The same reads as under: Complainant examined by way of affidavit. Documents filed along with complaint perused. Material on record prima facie discloses commission of an offence under Section 138 N.I. Act by accused. Let accused be summoned on filing of PF/RC, approved courier, dasti for 25.03.08. Steps be taken within a week. 3. To appreciate the factual matrix of this case, it would be necessary to take note of some of the paragraphs of the complaint which are reproduced hereunder: 2. That the accused No. 2 in the month of Jan 2002 approached and asked from the complainant for a sum of Rs. 6,00,000/- (Rs. Six Lakhs Only) for the personal needs/friendly loan as the accused was facing some financial crises. On the accused's request the complainant gave you a sum of Rs. 6,00,000/- (Rs. Six Lakhs Only) through cheque No. 340787 drawn on Punjab National Bank, Lawrence Road Branch, to the accused No. 2 as friendly loan. The ....
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....hat the above said cheque bearing No. 350562 dated 05-05-2007 drawn on ICICI Bank Limited, Punjabi Bagh branch, New Delhi for a sum of Rs. 50,000/- was issued by the accused No. 2 to the complainant with the clear understanding that the same will be encashed on presentation. 7. That upon return of the said cheques, the Complainant issued a notice dated 12-11-2007 i.e. within a stipulated period from the date of dishonoured cheques having been handed over by the Complainant's banker to her. The said notice was duly serve duly served upon the Accused/Respondent. However, the Accused/Respondent neither complied with the terms of the said notice nor replied the same. 4. A perusal of the affidavit annexed with the complaint which has been relied upon by the Metropolitan Magistrate while passing the impugned order also shows that only the averments made in the complaint have been reiterated by the deponent. 5. One thing which is important and can be taken note of is that neither in the complaint nor in the notice nor in the affidavit it has been stated that the debt which became time barred i.e. the amount of Rs. 6 lakhs which was paid by the complainant to petitioner No. 1 ....
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.... the lower appellate court as confirmed by the High Court is unassailed. Therefore, the special leave petition is dismissed. 9. Counsel for the complainant/respondent on the other hand tried to suggest that in view of Section 25 of the Contract Act, once the cheque was issued by the petitioners in lieu of their admitted liability, the dishonor of a cheque issued by them and non-payment thereof despite receipt of the notice makes out a case against them under Section 138 of the N.I. Act and therefore, the complaint filed by the complainant was maintainable in accordance with law. 10. To appreciate the contentions of parties, the provisions contained under Section 138 of the N.I. Act are reproduced hereunder: Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by hi m with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it....
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.... or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; (b) the word "signed" means signed either personally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. 12. A perusal of the aforesaid provision clearly goes to show that for analyzing the limitation of a civil liability beyond a period of three years, the acknowledgement, if any, must be there before period of limitation is over, which is not the case. 13. It may also be relevant to take note of the judgment delivered by the Bombay High Court in Smt. Ashwini Satish Bhat v. Shri Jeevan Divakar Lolienkar and Anr. : 2000(5)BomCR9 , wherein also in a similar case when a cheque was dishonoured which issued beyond the period of limitation the appeal filed by the complainant was dismissed. The relevant observations made in this regard in the aforesaid judgm....