2008 (9) TMI 1017

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....le Instruments Act, 1881, and, against the said acquittal, the Complainant seeks Special Leave to Appeal. 3. One of the grounds of acquittal, is that the subject cheque was issued by the accused in payment of a time barred debt which was not enforceable in terms of the explanation to Section 138 of the said Act. There is no dispute that the commission or brokerage fee was due and payable to the Complainant on 30.12.1999 and the subject cheque was issued on 27.08.2005 for part payment of the said fees. 4. The learned Addl. Sessions Judge by relying on the case of N. Ethirajulu Naidu v. K.R. Chinnikrishnan Chettiar : AIR1975Mad333 and decisions of this Court in the case of Narendra V. Kanekar v. Bardez Taluka Co-op Housing Mortgage : 20....

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....at Clause (3) of Section 25 of the Contract Act, in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below Section 138 of the Act. As far as this aspect of the case is concerned, the learned Division Bench observed that to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act, cannot be said to be irrelevant. This can provide a cause for a legal liability. Although the primary question answered by the Division Bench was that a cheque defines a promis....

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....ppears to be preponderance of judicial opinion in support of the view that only if the cheque is issued in discharge of a legally enforceable debt or other liability that Section 138 of the Act is attracted but if a cheque is issued for the discharge of a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Act. This view was first taken in Girdhari Lal Rathi v. P.T.V. Ramanujachari 1997(2) Crimes 658, then by this Court in the case of Smt. Ashwini Satish Bhat v. Shrijeevan Divakar Lolienkar 1999(1) GLT 408 and Joseph v. Devassia 2003 K.L.T. (3) 533, and it appears that the last Judgment also has the imprimatur of the Apex Court in Special Leave to Appeal (Cri) No. 1785/2001, which was dismissed b....