TMI Blog2009 (4) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... s under limitation and as such the loan became time barred as on 31.8.2002. It is also clarified that first two cheques which stated to have been paid to the complainant by the petitioners were paid on 27.4.2006 and 31.5.2006. Thus those cheques were paid after three years of the friendly loan having became time barred. Similarly, the cheques issued in lieu of the original cheque i.e. a cheque bearing No. 817773 dated 30-08-2006 and another cheque bearing No. 350562 dated 05-05-2007. Section 18 of the Limitation Act 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. 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.[ 1999 (2) TMI 699 - BOMBAY HIGH COURT] , 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. No contrary judgment has been cited on behalf of the complainant/respondent. Accordingly the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant waited for some time as the accused had promised to repay the friendly loan after six months but he failed to do so. After considerable persuasion from the complainant the accused No. 2 in lieu of the above mentioned friendly loan, issued two cheques bearing No. 817758 dated 27-04-2006 and another bearing No. 817760 dated 31-05-2006 each for a sum of ₹ 50,000/- (Fifty Thousand Only) each, each drawn on Bank of India Rajendra Place Delhi, Branch in favour of the complainant towards the part payment against the outstanding dues towards the accused. The said cheques were however enchased on presentation. 4. That thereafter the complainant again waited for some time and after considerable persuasion from the complainant the accused No. 1, again in lieu of above mentioned friendly loan, issued two cheques bearing nos.817772 dated 14-08-2006 and another cheque bearing No. 817773 dated 30-08-2006 each for a sum of ₹ 50,000/- (Fifty Thousand Only) each, each drawn on Bank of India Rajendra Place Delhi, Branch in favour of the complainant towards the part payment against the outstanding dues towards the accused. The said cheques were dishonored on presentation but how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty alive. 6. A perusal of the complaint and other documents as referred to above goes to show that the complainant had paid a sum of ₹ 6 lakhs by way of cheque to petitioner No. 1 at the asking of petitioner No. 2 somewhere in January, 2002 and the said cheque was credited in the account of petitioner No. 1 on 1.2.2002 and was payable after six months and was not paid within three years from 31.8.2002 that is the period within which it was under limitation and as such the loan became time barred as on 31.8.2002. A perusal of the complaint also clarified that first two cheques which stated to have been paid to the complainant by the petitioners were paid on 27.4.2006 and 31.5.2006. Thus those cheques were paid after three years of the friendly loan having became time barred. Similarly, the cheques issued in lieu of the original cheque i.e. a cheque of ₹ 50,000/- bearing No. 817773 dated 30-08-2006 and another cheque bearing No. 350562 dated 05-05-2007. 7. It is submitted on behalf of learned Counsel for the petitioners that in view of provisions of Section 138 of the N.I. Act and if the same read along with explanation, it is apparent that the offence under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have committed an offence and sh all, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is dr awn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 2 [within thirty days] of the receipt of information by hi m from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, debt or other liability means a legally enforceable debt or other liability.] 11. At this juncture, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, submitted before me that the dishonoured cheque in question was not in respect of a legally enforceable debt and in view of Explanation to Section 138 of the said Act, the Magistrate has rightly acquitted the respondent on the said count as well as on the ground that there was doubt as to whether the amount mentioned in the said cheque was in the handwriting of the respondent as the defence of the respondent is that he had handed over to the appellant a blank cheque. In support of his submission that the dishonoured cheque in question is not in connection with any legally enforceable debt, reliance was placed by him on Girdhari Lal Rathi v. P.T.V. Ramanujachari and Anr. 1998 B J. 127 : 2000 DC. (A.P.) 420. He, therefore, submits that there is no case for interference with the acquittal. 4. The complainant, respondent and one Shankar Prabhudessai had entered into partnership vide Partnership Deed Exhibit P.W. 1/D on 24th August 1990. This partnership was dissolved on 13th June 1991 after an agreement was executed between the parties under which the respondent agreed to pay a sum of ₹ 1,53,724 to the appellant/complainant within 12 months and in case he fails to make th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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