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2023 DIGILAW 1172 (GUJ)

Parakramsinh Harisinh Vaghela v. State of Gujarat

2023-12-19

NISHA M.THAKORE

body2023
JUDGMENT : Nisha M. Thakore, J. 1. This appeal is filed at the instance of the original complainant under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order dated 11.05.2007 passed by the 9th Additional Senior Civil Judge and Judicial Magistrate, First Class, Nadiad in Criminal Case No.505 of 2006. By the said judgment and order, the learned Magistrate has recorded acquittal of the present respondent - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "Act"). 2. The case alleged by the original complainant before the trial Court in brief is reproduced as under: 2.1. The present respondent no.2 was in need of financial help and had approached the original complainant by borrowing an amount of Rs.1 lakh in the year 2002. A separate document in writing on stamp paper of Rs.100/- was executed by the respondent no.2 in favour of the original complainant acknowledging the fact of borrowing the amount of Rs.1 lakh from the original complainant. Such deed was executed in presence of the witness on 5.6.2002. At that stage, the cheque bearing no.458070 drawn from the account of the respondent no.2 i.e from Bank of Baroda for an amount of Rs.1 lakh was handed over to the original complainant as security cheque. The said cheque was without incorporation of the details of the name of the holder and the date. It was agreed between the parties that the original complainant shall intimate one month in advance as and when the need arose for realization of the borrowed amount and it was assured by the respondent no.2 of repayment of such borrowed amount. 2.2. It is the case of the complainant that the need for money arose and the complainant had approached in search of the accused at his clinic. The complainant had visited the accused at his clinic at Vatva on two to three occasions and had raised demand for the dues. At that stage, the accused had endorsed the date of 20th November 2005 in the cheque handed over to the complainant and had assured of realization of the outstanding amount on presentation of such cheque. The complainant had accordingly presented the cheque dated 28.11.2005 with his bank i.e. Indian Bank, Santram Branch, Nadiad. At that stage, the accused had endorsed the date of 20th November 2005 in the cheque handed over to the complainant and had assured of realization of the outstanding amount on presentation of such cheque. The complainant had accordingly presented the cheque dated 28.11.2005 with his bank i.e. Indian Bank, Santram Branch, Nadiad. The said cheque was returned back by the concerned Bank on 29.11.2005 with an endorsement of insufficient funds without realization of the borrowed amount. Such information was shared by the Bank through a return memo. In such circumstances, the complainant was constrained to issue legal notice dated 12.12.2005 which was duly served by registered Post AD as well as UPC whereby demand was raised about repayment of the outstanding amount within a period of 15 days. Though such notice was duly served upon the respondent on 20.12.2005, the respondent had failed to respond to such notice or to make any payment. On completion of the statutory period, the complainant had proceeded to lodge the complaint on 27.01.2006 under Section 138 of the Negotiable Instruments Act. The said complaint was registered as Criminal Case No.505 of 2006. 2.3. Upon considering the verification of the complainant and noticing the compliance of the statutory provisions of maintainability of the complaint, the learned Magistrate by order dated 27.01.2006 issued summons upon the respondent accused. The summons were duly served upon the respondent accused and upon appearing of the accused, his plea was recorded vide Exh.16. The respondent accused had refused the case put forward by the complainant. The trial Court has proceeded with the summary trial. During the course of the trial, the complainant has led oral evidence which mainly includes the evidence of the complainant - Parakramsinh Harisinh at Exh.18 and his witness- Jignesh Merubha at Exh.30. Apart from the aforesaid oral evidence, the complainant has also led following various documentary evidence; Particulars Exh.No. Agreement dated 6.6.2006 21 Disputed cheque dated 28.11.2005 22 Return memo dated 29.11.2005 23 Notice dated 12.12.2005 24 Registered AD Slip 25 UPC Slip 26 Acknowledgment slip 27 Closing pursis 31 2.4. The trial Court framed the issue noticing the defence put forward by the accused, which reads as under: "1. Whether the accused has proved that the disputed cheque was not handed over for payment of dues or liabilities but as a security cheque ? 2. The trial Court framed the issue noticing the defence put forward by the accused, which reads as under: "1. Whether the accused has proved that the disputed cheque was not handed over for payment of dues or liabilities but as a security cheque ? 2. Whether the accused proved that the cheque which was handed over to the complainant was without details of the date and details of date were entered after the limitation period and therefore, the cheque is drawn beyond the period of limitation ? 2.5. The further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein the accused has fairly admitted handing over of the cheque to the complainant but has disputed the fact of having entered date of 28.11.2005 in the disputed cheque. In fact, it is clarified that he was not consulted by the complainant before entering such a date and the alleged outstanding dues has been repaid by him in installment. Further defence was raised that the old cheque which was lying with the complainant has been misused and a false case has been raised against the respondent accused. He had therefore prayed for dismissal of the complaint. 2.6. The trial Court upon recording the evidence brought on record proceeded to examine the aforesaid issues. The trial Court while examining the defence of the respondent accused of the cheque being tendered as a security cheque has taken into consideration the contents of the complaint as against the deposition of the complainant at Exh.18 and has accepted the fact of execution of the agreement dated 6.6.2002 entered into between the parties at Exh.21. The said agreement has been duly proved by the respondent by examining the witness - Jigneshbhai at Exh.30 in whose presence the agreement was entered upon. Even otherwise, the respondent - accused has not disputed his signature on the aforesaid document. Taking note of the recitals of the said agreement, it has transpired that the cheque bearing no.458070 was drawn from the account of the Bank of Baroda, Nadiad of the respondent accused for an amount of Rs.1 lakh without incorporation of the details of the date and holder of cheque, was handed over to the complainant. Taking note of the recitals of the said agreement, it has transpired that the cheque bearing no.458070 was drawn from the account of the Bank of Baroda, Nadiad of the respondent accused for an amount of Rs.1 lakh without incorporation of the details of the date and holder of cheque, was handed over to the complainant. The aforesaid cheque was handed over in lieu of the liability incurred by the respondent-accused by borrowing the amount of Rs.1 lakh as hand loan from the complainant as acknowledged in the said agreement. The trial Court has therefore, answered the issue no.1 in favour of the accused that the disputed cheque was handed over to the complainant as security cheque without endorsing details of date and the holder of the cheque. The trial Court has also noticed the aforesaid fact being conceded by the complainant in his complaint. 2.8. On the issue no. 2, the learned Magistrate examined the case of the complainant as averred in the original complaint. The trial Court has also closely appreciated the deposition of the complainant at Exh.18 on comparison of the evidence of the complainant in light of the averments made in the complaint. As against his admission in the cross examination, the learned Magistrate has noticed major contradictions as regards to the incorporation of the details of date i.e. 28.11.2005, as endorsed in the disputed cheque. The learned Magistrate noticed that the respondent accused has successfully brought on record the contradiction about the fact of date being entered upon by the accused. By noticing the aforesaid contradiction, the learned Magistrate has answered issue no.2 in favour of the accused. 2.9 At that stage, the learned Magistrate has also noticed that even if the contradictions are ignored and the case of the complainant of an endorsement dated 28.11.2005 on the disputed cheque is accepted, then also, the complaint is not tenable in eye of law as the cheque is drawn beyond the prescribed period of limitation of three years. According to the learned Magistrate, the date of agreement executed at Exh.21 is 6.6.2002 which is the starting point of extending hand loan of Rs.1 lakh to the respondent accused. According to the learned Magistrate, the date of agreement executed at Exh.21 is 6.6.2002 which is the starting point of extending hand loan of Rs.1 lakh to the respondent accused. The period of three years limitation prescribed for recovery of the amount of the legal dues is considered as three years and has therefore, arrived at a conclusion that the term period of hand loan got expired on 6.6.2005, whereas, the disputed cheque was issued on 28.11.2005 i.e. beyond the prescribed period of limitation of three years. 2.10 The learned Magistrate has further considered the judgment relied upon by the respondent -accused in the case of Girdharilal Rathi vs. PTV Ramanujchari and Ors. reported in 1997 (2) Crimes 658 and has arrived at a conclusion that no offence under Section 138 of the Act would be attracted in case of the time barred debt as the same is not legally enforceable. The trial Court has thus recorded acquittal of the respondent - accused for the offence alleged. Hence, this appeal. 3. Heard Mr. D.J.Bhatt, learned advocate for the appellant- original complainant. At the outset, he has invited my attention to the fact that pending this appeal the original complainant - Prakramsinh Vaghela has expired and his heirs and legal representatives have been brought on record pursuant to the order dated 10.10.2022 passed by this Court. Learned advocate has placed reliance upon the agreement dated 06.06.2002 produced at Exh.21 to contend that an indisputable amount of Rs.1 lakh was borrowed by the respondent -accused for the purpose of development of his business from the original complainant. Not only the disputed cheque was admitted by the respondent as can be noticed from the recitals of the agreement which was not disputed but from the further statement of the accused recorded under Section 313 of the Code of Criminal Procedure. It was therefore submitted that the essential ingredients to attract the offence under Section 138 of the Act has been fulfilled. By virtue of the aforesaid evidence, it has been established that the respondent accused had drawn the cheque in favour of the complainant for payment of an amount of Rs.1 lakh. The cheque was presented within the period of three months from the date it was drawn i.e. 28.11.2005 and the cheque had been returned back by the bank unpaid because of insufficient funds in the account of the respondent accused. The cheque was presented within the period of three months from the date it was drawn i.e. 28.11.2005 and the cheque had been returned back by the bank unpaid because of insufficient funds in the account of the respondent accused. The demand was raised by the original complainant for payment of the aforesaid amount by giving notice to the respondent accused and inspite of sufficient time being granted, the respondent - accused had failed to make payment of such outstanding amount. 3.1. It was further submitted that the learned Magistrate committed serious error by holding that the dues were beyond the limitation period and no offence under Section 138 of the Act was attracted. Reliance was placed on the recitals of the agreement at Exh.21 to contend that it was mutually agreed between the parties that demand of money shall be raised by the complainant one month's in advance and on such intimation being received, the respondent-accused was expected to make such repayment of the outstanding amount thereafter. It was therefore submitted that the starting point of limitation was the date on which the cheque was drawn in favour of the complainant by incorporating the date in the cheque i.e. 28.11.2005. It was further submitted that a cheque in question was given for the legal debt incurred by the respondent accused as evident from the agreement dated 6.6.2002. Even the amount in the agreement appears to be the amount in the disputed cheque. According to the learned advocate, the complainant has brought on record sufficient material on record to indicate that the cheque was issued towards legal dues of an amount of Rs.1 lakh incurred by the respondent-accused. It was further submitted that no evidence was brought on record by the respondent of repayment of the amount in installment as raised in the defence in the form of further statement recorded under Section 313 of the Code of Criminal Procedure. The burden was upon the respondent accused to prove such contention and in absence of any evidence being brought on record the presumption which had arisen in favour of the complainant had remained uncontroverted. In such circumstances, the learned Magistrate ought to have not acquitted the respondent -accused for the offence alleged. The burden was upon the respondent accused to prove such contention and in absence of any evidence being brought on record the presumption which had arisen in favour of the complainant had remained uncontroverted. In such circumstances, the learned Magistrate ought to have not acquitted the respondent -accused for the offence alleged. The attention of this Court was invited to the fact that the judgment relied upon by the learned Magistrate in the case of Girdharilal Rathi (supra) has been subsequently overruled by the Hon'ble Supreme Court in the case reported in Balbhadurasinh Indrasinhji Zala v. Shanku Concretes Pvt. Ltd., 2005 (3) GLH 685 , however, perusal of the aforesaid decision, it relates to the legal principle that any agreement entered upon would not defer the consideration attached with the cheque. 3.2. Mr. Bhatt, learned advocate for the appellant - original complainant has also relied upon the following decisions of this Court as well as Hon'ble Supreme Court; 1. Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Payrelal reported in (1999) 3 SCC 35 . 2. Hariprabha Govindlal Parekh vs. Dhirubhai Bhogilal Gandhi reported in 2010 (0) GLHEL-HC-227787. 3. Sripati Singh (since deceased) Through his son Gaurav Singh vs. The State of Jharkhand and Ors. reported in AIR 2021 SC 5732 . 4. Sureshbhai Narsinhbhai Parsana vs. State of Gujarat and Ors. reported in Manu/GJ/0677/2017. 5. Sunil Todi and Ors. vs. State of Gujarat and Ors. reported in AIR 2022 SC 147 . 6. Bhupesh Rathod vs. Dayashankar Prasad Chaurasia and Ors. reported in (2022) 2 SCC 355 . 7. Kotak Mahindra Bank Limited vs. Kew Precision Parts Private Limited & Ors. reported in (2022) 9 SCC 364 . 8. Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel and Ors. reported in MANU/SC/1294/2022. 4. Mr. I M Pandya, learned advocate has appeared with Mr. Hemal Davel, learned advocate for the respondent - original accused. Learned advocate for the respondent has vehemently objected to the aforesaid submissions of the learned advocate for the appellant. According to the learned advocate, an amount of Rs.1 lakh was borrowed by the accused on 6.6.2002, for which, a separate agreement was reduced in writing on stamp paper of Rs.100 which is produced on record at Exh.21. The aforesaid fact has not been disputed by the accused as evident from his further statement recorded under Section 313 of the Code. The aforesaid fact has not been disputed by the accused as evident from his further statement recorded under Section 313 of the Code. My attention was invited to the recitals of the said agreement. It was submitted that the blank cheque without incorporating the details of the date and the name of the holder of the cheque was handed over to the original complainant for an amount of Rs.1 lakh. In view of the aforesaid evidence, it was submitted that the learned Magistrate has rightly answered the issue no.1 in favour of the respondent - accused that the cheque in dispute was to be treated as security cheque. According to the learned advocate, the period of three years of limitation has rightly been applied by the learned Magistrate while arriving at a conclusion that the disputed amount of the cheque relates to time barred debt. Learned advocate has relied upon Article 19 of the Limitation Act to contend that the period of three years would expire on 6.6.2005, whereas, the date endorsed on the disputed cheque bears date of 28.11.2005 which is beyond the aforesaid prescribed period of three years. In light of the aforesaid undisputed fact, no error can be found with the approach of the learned Magistrate to hold the cheque in question was towards a time barred debt. At this stage, learned advocate had relied upon the explanation appended with Section 138 of the Act, whereby, the term legally enforceable relates to the debt which is enforceable in the eyes of law. By virtue of expiry period of limitation the debt as on the date of presentation of the cheque could not have been enforced in a civil suit proceeding and hence cannot be treated as "legally enforceable debt" to attract the offence punishable under Section 138 of the Act. It was further submitted that Section 25(3) of the Contract Act will have no applicability so far as proceeding under special enactment is concerned. He has further submitted that indisputably there is no renewal or acknowledgment of the debt within the period of limitation to treat the debt as legally enforceable debt. Learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case of SS Rajeshkhar vs. Angustus Jeba Ananth reported in AIR 2019 SC 942 . He has further submitted that indisputably there is no renewal or acknowledgment of the debt within the period of limitation to treat the debt as legally enforceable debt. Learned advocate has relied upon the decision of the Hon'ble Supreme Court in the case of SS Rajeshkhar vs. Angustus Jeba Ananth reported in AIR 2019 SC 942 . to contend that once the probable defence of absence of legally enforceable debt is established, the order of acquittal is bound to follow. 4.1. Learned advocate has also canvassed his submission on the scope of appeal once the respondent accused has earned acquittal after full-fledged trial. 4.2. Learned advocate has relied upon the following various decisions of the Hon'ble Supreme Court as well as this Court in support of his case: 1. Sureshbhai Narsinhbhai Parsana vs. State of Gujarat & ors reported in Manu/GJ/0677/2017. 2. Kotak Mahindra Bank Limited vs. Kew Precision Parts Private Limited & ors reported in (2022) 9 SCC 364 . 3. State of Gujarat vs. Fatabhai Pashabhai Rathod reported in 2022(4) GLH 192 . 4. Kanani Hansraj Jadavbhai vs. Hemendra Tulsibhai Patel and Anr reported in 2022(1) GLH 59 . 5. Rameshkumar Vitthalbhai Patel vs. State of Gujarat and others reported in 2022(4) GLH 579. 6. State of Gujarat vs. Govindbhai Madhubhai Koli rendered in Criminal Appeal No.594 of 1999 dated 16.12.2022. 7. State of Gujarat vs. Rajendra Kantilal Chauhan reported in 2022 (3) GLH 374 . 8. State of Gujarat vs. Raju @ Pahelvan @ Ibrahim Azmuddin Luhar reported in AIR Online 2022 Guj 1050. 9. State of Gujarat vs. Minaben w/o Nitinpuri Gunsai & ors reported in 2022 (4) GLH 242 . 4.3. By making aforesaid submissions, the learned advocate has requested not to entertain the appeal and to confirm the order of acquittal as recorded by the learned Magistrate. 5. Heard the learned advocates for the respective parties at length and perused the documents and authorities relied upon. 6. Considering the submissions made by the learned advocates for the respective parties, the neat question of law which falls for consideration of this Court in the present appeal is : "Whether in case of time barred debt, the offence under section 138 of the Act would be attracted, in view of the expression legally enforceable debt or other liability appearing in Explanation to Section 138 of the Act?" 7. Before examining the aforesaid issue, it would be appropriate to look into the relevant provisions of the Limitation Act which deals with the aspect of period of limitation within which the legal action can be initiated for recovery of dues i.e. for enforcement of debt. The Limitation Act, 1963 is a special statute which prescribes a time limit for instituting legal proceedings. The said act provides different periods of limitation, for different kinds of claims, however for matters falling under the Indian Contract Act, the limitation period is for three years. Thus, the limitation period for recovery of debt under a simple contract is three years from the date on which the debt became due. Similarly, the limitation period for breach of contract is also three years from the date when the breach occurred. A cause of action in relation to the recovery of debt under the Indian Contract Act arises when the payment is due as per the terms of the contract and the debtor defaults. In other words, the cause of action starts from the date on which the debt becomes dues and the debtor fails to pay the same in breach of the contract. Under Section 28 of the Indian Contract Act, if a person entitled to claim fails to institute the suit within the prescribed period, the claims become time barred. This means that the right to claim ceased after the limitation period. In other words, the debt becomes unenforceable beyond the period of limitation. 8. However, certain exceptions regarding the limitation period are provided under the Act itself, viz. Some of the exceptions are applicability of Article 17, 18, 19 and 113 provided under Schedule of Limitation. Section 25(3) of the Indian Contract Act is also one of such exceptions. As provided by Section 17 of the Limitation Act, it provides for an exception of the limitation period in cases of fraud, mistake or concealment of facts by the debtor. Section 18 in the Limitation Act provides for extension of limitation period if a party acknowledges the liability of debt before the expiry of limitation period then this results in a fresh period of limitation. Section 19 of the Limitation Act provides for extension of limitation period in case of debtor making part payment of debt or interest before expiry of the limitation period. In such cases, the limitation period is extended. Section 19 of the Limitation Act provides for extension of limitation period in case of debtor making part payment of debt or interest before expiry of the limitation period. In such cases, the limitation period is extended. Article 113 prescribed the limitation period in case of dispute for which no specific period of limitation is provided in the Act. This is a residual Article which provides a period of three years of limitation from the time when the right to sue accrues. In other words, if there is no specific provision in the Limitation Act or any other law that prescribes limitation period for a particular type of suit then such suit can be instituted within the period of three years from the date when the right to sue accrues. Section 25(3) of the Indian Contract Act is an exception to the general rule that an agreement made without consideration is void. It applies to a case where there is a promise made in writing and signed by the person to be charged therewith to pay wholly or in part a debt of which is barred by law of limitation. Therefore, if a debtor after expiry of the period of limitation provided for recovery of debt makes a promise in writing signed by him to pay debt wholly or in part, the said promise would be governed by Section 25(3) of the Indian Contract Act and the agreement would become enforceable in law. 9. The Hon'ble Supreme Court in the case of A.V. Murthy v. B.S. Nagabasavanna reported in (2002) 2 SCC 642 had an occasion to examine the aforesaid provision and has held that cheque is a promise within the meaning of Section 25(3) of the Indian Contract Act. It would be relevant to reproduced the observations of the Hon'ble Supreme Court in the aforesaid case, "5. As the complaint has been rejected at the threshold, we do not propose to express any opinion on this question as the matter is yet to be agitated by the parties. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. But, we are of the view that the learned Sessions Judge and the learned Single Judge of the High Court were clearly in error in quashing the complaint proceedings. Under Section 118 of the Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. Even under Section 139 of the Act, it is specifically stated that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. It is also pertinent to note that under sub-section (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 case, 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 31-3-1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgment and the creditor might have a fresh period of limitation from the date on which the acknowledgment was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent." 6. This is not a case where the cheque was drawn in respect of a debt or li ability, which was completely barred from being enforced under law. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. If for example, the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that that debt or liability is not legally enforceable as it is a claim, which is prohibited under law. This case is not a case of that type. But we are certain that at this stage of the proceedings, to say that the cheque drawn by the respondent was in respect of a debt or liability, which was not legally enforceable, was clearly illegal and erroneous." 10. It would be relevant to note that the aforesaid decision of the Hon'ble Supreme Court was relied upon by the Hon'ble Division Bench of the High Court of Bombay in the case of Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt reported in 2013 (2) Mh. L.J. 130. After taking into consideration sub-section (3) of Section 25 of the Act read with Section 13 of the Act, the Division Bench of the Bombay High Court held that when the cheque is drawn to pay wholly or in part, a debt which is not enforceable only by reason of bar of limitation, the cheque amount to a promise, which is governed by subsection (3) of Section 25 of the Contract Act and thus can be treated as valid promise / agreement and same is enforceable in eye of law. 11. The issue of time barred debt had arisen for consideration before the Coordinate Bench of this Court in the case of the J. Chitranjan And Company Proprietor - C D Shah vs. State of Gujarat, reported in 2017 (1) GCD 390. It would be relevant to mention that the Division Bench of the High Court of Bombay had pronounced the decision on 19.10.2012 wherein the Coordinate Bench of this Court in the case of J. Chitranjan and Company (supra) had delivered its decision in later point of time on 13.10.2016. During the interregnum, the decision of the Hon'ble Supreme Court in the case of Saseeriyil Joseph vs. Devassia, Criminal Appeal no. 35 of 2008 was decided on 14.12.2013, whereby the case under section 138 of the NI Act was dismissed noticing the time barred debt. The aforesaid decision was scrupulously followed by the Coordinate Bench of this Court in Chitranjan and Company (supra). 35 of 2008 was decided on 14.12.2013, whereby the case under section 138 of the NI Act was dismissed noticing the time barred debt. The aforesaid decision was scrupulously followed by the Coordinate Bench of this Court in Chitranjan and Company (supra). The relevant observations of the Court are reproduced hereunder: "17.1 The next question which falls for consideration of this court is with regard to the meaning to be assigned to the expression `legally enforceable debt or other liability' as contained in explanation to section 138 of the N.I. Act and whether the time barred debt is a legally enforceable debt. This issue may not detain this court for long in view of the decision in Sasseriyil Joseph v. Devassia (supra). The said legal position was reiterated by this court in Criminal Appeal No. 35 of 2008 decided on 14.12.2013 whereby the case under section 138 of the N.I. Act was dismissed on noticing the time barred debt. It must be held that for a time barred debt proceedings under section 138 of the N.I. Act are not maintainable. In the instant case, admittedly, loan was made in the year 1983/1986 as deposed by the complainant and in view of the limitation period prescribed in Article 19 of the Limitation Act for money payable for money lent being 3 years from the date the loan was made, the debt or other liability as indicated in explanation to section 138 of the N.I. Act was not legally enforceable beyond 1986/1989 and the proceedings under section 138 of the N.I. Act initiated in the year 1994 were not competent. No evidence was adduced to show that within the prescribed period of limitation debt was acknowledged by the accused in writing. The decision in A.V. Murthy (supra) is of no assistance to the complainant inasmuch as therein it was held that in view of presumption under section 118 and 138 of the N.I. Act; as also section 25 of the Indian Contract Act, the complaint could not have been thrown overboard at the threshold on the ground of limitation. Such a fact situation is not available in the instant case. Such a fact situation is not available in the instant case. The proposition of law indicated in Hindustan Apparel Industries v. Fair Deal Corporation (supra) which dealt with acknowledgement within the period of limitation also cannot be applied to the facts of the case inasmuch as according to the complainant, the cheque was issued in the year 1994 i.e. after expiry of the period of limitation and therefore, there was no question of acknowledgement of the debt within the meaning of section 18 of the Limitation Act. As noticed at paragraph No. 5.3 above, the Supreme Court in Sasseriyil Joseph V. Devassia (supra) had, in no uncertain terms, after perusing the decision of the Kerala High Court in Criminal Appeal No. 161 of 1994 and after finding that the language in section 138 of the N.I. Act was clear and unambiguous, confirmed the judgement of the Kerala High Court. In the said judgement of the Kerala High Court in paragraph No. 6 and 7, it is held as under: "6. The only question that arises for consideration in this appeal is whether the respondent who issued the cheque in question in discharge of a time barred debt is liable under section 138 of the Negotiable Instruments Act. In this case, the complainant had admitted that the loan was advanced to the accused in January, 1988 and the cheque was issued in February, 1991. Thus, by the time the cheque was issued, the debt was barred by limitation since there was no valid acknowledgement of the liability within the period of limitation. According to the learned counsel for the appellant, the promise made by the accused to repay the time barred debt would come within the purview of section 25(3) of the Indian Contract Act. No doubt, the promise to pay a time barred cheque (debt) is valid and enforceable, if it is made in writing and signed by the person to be charged therewith. But, it is clear from section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer to the payee. But, it is clear from section 138 of the Negotiable Instruments Act that in order to attract the penal provisions in the bouncing of a cheque in Chapter XVII, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, or any debt or other liability of the drawer to the payee. The explanation to section 138 defines the expression debt or other liability as a legally enforceable debt or other liability. The explanation to section 138 reads as under :- Explanation :- For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability. 7. Thus, section 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability. In this case, admittedly, the cheque in question was issued in discharge of a time barred debt. It cannot be said that a time barred debt is a legally enforceable debt. In this connection, it is also relevant to note the decision of the Andhra Pradesh High Court reported in Girdhari Lal Rathi v. P.T.V. Ramanujachari 1997 (2) Crimes 658. It has been held in that case that if a cheque is issued for a time barred debt and it is dishonoured, the accused cannot be convicted under section 138 of the Negotiable Instruments Act simply on the ground that the debt was not legally recoverable. I am fully in agreement with the view expressed by the learned Judge in the decision referred to above. " 17.2 Thus, the above discussion would answer even the argument in relation to section 25(3) of the Indian Contract Act apart from the argument in relation to enforceability of the debt and maintainability of the complaint under section 138 of the N.I. Act. " 12. In the case of J. Chitranjan and co (supra), indisputably the debt in question related to the year 1983 and the cheque was allegedly issued in the year 1994. Thus, it was issued beyond the period of limitation prescribed under the Limitation Act. " 12. In the case of J. Chitranjan and co (supra), indisputably the debt in question related to the year 1983 and the cheque was allegedly issued in the year 1994. Thus, it was issued beyond the period of limitation prescribed under the Limitation Act. Similar contention was raised by placing reliance upon sub-section (3) of Section 25 of the Indian Contract Act and about raising of the presumption under Section 118 of the Act to contend that the cheque being issued on demand being made in the year 1993, the proceedings under Section 138 cannot be curtailed on the ground of limitation and the period of limitation has started from the date of demand and therefore, the debt was not time barred and was legally enforceable debt. The Coordinate Bench had taken into consideration the decision in the case of Shanti Prakash Vs. Harman Das reported in AIR 1937 Lahor 642 and considered the distinction between the expression acknowledgment appearing in Section 19 of the Limitation Act and the expression promise appearing in Section 25(3) of the Contract Act. The Court also held that acknowledgment under the Limitation Act is required to be made before expiry of the period of limitation, whereas a promise under Section 25(3) of the Contract Act to pay a debt may be made after the limitation period. Based on such analysis, the Court further held that after a period of limitation expires, nothing short of an express promise will provide a fresh period of limitation. The Coordinate Bench has also relied upon the decision of the Hon'ble Supreme Court in the case of Sasseriyil Joseph (Supra), wherein the proceeding under Section 138 of the Act was dismissed noticing the time-barred debt. In absence of evidence being adduced to show that within a prescribed period of limitation, the debt was acknowledged by the accused in writing thereby extending the period of limitation for a further period. The offence under Section 138 of the Act was attracted. The Court had also taken into consideration the decision in the case of A.V. Murthy (Supra) and had distinguished by observing that in the aforesaid case, the matter was placed for consideration before the Hon'ble Supreme Court in the proceeding arising out of quashing petition under Section 484 of the Code of Criminal Procedure where the complaint was quashed at the threshold on pure question of time barred debt. The Hon'ble Supreme Court disapproved such approach of the High Court as it was contended before the Hon'ble Supreme Court that relevant entries of the amount borrowed were reflected in the balance sheet which gave them a fresh period of limitation. The Court therefore, formed an opinion that the issue of limitation being a mixed question of fact and law in the facts of the case was required to be examined by giving the opportunity of full-fledged trial. 13. While going through the decision relied upon by the learned advocates for the respective parties, both the learned advocates for the parties have placed reliance upon the decision of this Hon'ble Court in the Sureshbhai Narsinhbhai Parsana (supra). The Coordinate Bench has relied upon the earlier decision of this Court in the case of J. Chitranjan and co (supra) which in turn has followed the decision of the Hon'ble Supreme Court in the case of Sasseriyil Joseph (supra), the Court ultimately held that law is very clear that if the cheque is found to be time barred, the complaint under Section 138 of the N.I. Act shall fail. At the same, the Court has also cautioned to bear in mind the aforesaid aspect while appreciating the evidence on record. 14. In view of the aforesaid legal position, this Court is under obligation to verify as to whether the issue of time barred debt has rightly been examined by the trial Court in the facts of the case and the evidence brought on record. 15. The undisputed facts as borne out from the record are that the disputed cheque without incorporating the details of the holder of the cheque and the date, for an amount of Rs.1 lakh duly signed by the respondent was handed over to the complainant on 6.2.2002. The appreciation of the recitals of the agreement (Exh.21) executed between the parties clearly establishes the fact that the complainant was the holder in due course of the cheque for the outstanding dues of an amount of Rs.1 lakh to be realized from the respondent - original accused. The very fact that a blank cheque signed by the respondent was voluntarily handed over to the complainant implies authority to incorporate the particulars in the cheque and that itself would not invalidate the cheque. The very fact that a blank cheque signed by the respondent was voluntarily handed over to the complainant implies authority to incorporate the particulars in the cheque and that itself would not invalidate the cheque. Section 139 of the Act permits the Court to raise presumption in favour of the holder of the cheque and to draw initial presumption in favour of the holder of the cheque as to the legally enforceable debt and the onus was on the accused to prove that the cheque was not issued for discharge of debt or liability, by adducing evidence. 16. In the present case, on close reading of the further statement of the accused under Section 313 of the Code a specific defence of misuse of cheque has been raised by the respondent-accused. The respondent has strongly denied giving consent of incorporating the date in the cheque. The major contradictions have been brought on record by the respondent accused successfully in the cross examination of the complainant on the aspect of entering the crucial date on which the cheque was drawn. Right from the inception i.e. from the date of giving of legal notice followed by the averments made in the complaint and the examination in chief of the complainant produced at Exh.18, it was contended by the complainant that the complainant had approached the clinic of the respondent accused on two to three occasions and at one stage respondent accused had entered the date of 28.11.2005 in the blank signed cheque handed over to the complainant and has assured about repayment of the outstanding dues whereas, in the cross examination the complainant has fairly conceded that the date was entered in the cheque by him upon instruction of the respondent accused. The aforesaid aspect goes to the root of the matter inasmuch as the issue of validity of cheque arose for consideration. Indisputably, the blank signed cheque without details of the holder of the cheque and the date of cheque was handed over to the complainant on 6.6.2002 whereas, the cheque was actually drawn by incorporating the details of the date by endorsing date of 28.11.2005, without any initial of the complainant acknowledging such incorporation. The respondent accused has categorically denied in his further statement of giving consent to the complainant to enter the date in the blank signed cheque. The respondent accused has categorically denied in his further statement of giving consent to the complainant to enter the date in the blank signed cheque. Section 87 of the Negotiable Instruments Act deals with situation of fact of material alteration which provides that any material alteration made in the instrument renders the same void as against anyone who is party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties. In other words, in absence of any consent being given by the respondent, the changes made by incorporating the dates in the blank signed cheque would render such instrument void. In my opinion, once the respondent accused had disputed the aspect of consent being given for incorporation of the date in the blank signed cheque, the initial presumption drawn in favour of the complainant was rebutted and it was for the complainant to prove his case that the consent was given by the respondent accused and the cheque was presented thereafter. The aforesaid issue of endorsement of date on the disputed cheque in a way also becomes significant for the purpose of 'time barred debt'. 17. At this juncture, it would also be appropriate to take note of Section 18 of the Limitation Act which deals with acknowledgment and explanation of limitation which reads as under:- "Section 18- Effect of acknowledgment in writing (limitation act) (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.--For the purposes of this section,-- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property 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." 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 acknowledgment, if any, must be there before the period of limitation is over, which is not the case. In fact, in absence of any signature of the accused being taken below the incorporation of date in the blank signed cheque, clearly demonstrates absence of acknowledgment/consent by the accused. Similarly to invoke section 25(3) of the Contract Act, also there has to be acknowledgment in the form of writing reviving a promise to pay debt which has otherwise become time barred beyond the period of limitation. The absence of signature on the date incorporated subsequently in a cheque issued prior to three years of limitation may not fulfill the requirements of Section 25(3) of the Contract Act. 18. Coming back to the issue of time barred debt, more particularly, in light of the submission made by the learned advocate for the appellant that the period of limitation would start from the date of raising of demand. It would be relevant to re-appreciate the cross examination of the complainant on the aforesaid aspect. 18. Coming back to the issue of time barred debt, more particularly, in light of the submission made by the learned advocate for the appellant that the period of limitation would start from the date of raising of demand. It would be relevant to re-appreciate the cross examination of the complainant on the aforesaid aspect. It has transpired from the cross examination of the complainant and even from the appreciation of the averments made in the legal notice and the complaint that no specific details with regard to date, day, month, year of which the complainant had visited the respondent accused to raise demand of repayment of the alleged dues has been brought on record, whereas, on the other hand, the respondent accused has raised specific defence disputing the date entered in the disputed cheque i.e. 28.11.2005 by the respondent-accused. On the contrary, as noted earlier material contradictions have been brought on record by the respondent accused. In absence of aforesaid material details, it would be difficult to examine the case of the complainant that the period of limitation as agreed between the parties i.e. from one month in advance from the date of intimation of repayment would govern the present case. The burden was upon the complainant to place on record the specific details to bring his case within the prescribed period of limitation. In such circumstances, the dishonoured cheque in question cannot be treated as acknowledgment under section 18 of the Limitation Act since the acknowledgment should be before the period of limitation is over or a promise under section 25(3) of the Contract Act, as it should be in writing. In view of this position, it has not been proved that the dishonoured cheque was in relation to a legally enforceable debt or liability in law. The dishonoured cheque admittedly was presented after 3 years of the said Agreement dated 06.06.2002. 19. With such evidence on record, in my opinion, no error can be found with the approach of the learned Magistrate in applying the general provision of the period of Limitation Act of three years. Even otherwise Article 19 prescribes the period of limitation of three years from the date when money is lent. 19. With such evidence on record, in my opinion, no error can be found with the approach of the learned Magistrate in applying the general provision of the period of Limitation Act of three years. Even otherwise Article 19 prescribes the period of limitation of three years from the date when money is lent. Thus, the starting point of period of limitation as evident from the agreement reduced in writing at Exh.21 is 6.6.2002 and accordingly the period of three years would stand expired on 6.6.2005, whereas, the date which is entered in the disputed cheque bears the date of 28.11.2005 which is beyond the prescribed period of three years. In such circumstances, no fault can be found with the approach of the learned Magistrate to treat the cheque being drawn towards the time barred debt i.e. against dues which were not legally enforceable in the eyes of law which is one of the requisite condition to attract the offence under Section 138 of the Act, as on the date of presentation of the cheque. 20. For the foregoing reasons, no offence can be said to have been committed by the respondent accused under Section 138 of the Act. Hence, the appeal fails and order of acquittal passed by the learned Magistrate is hereby stands confirmed. Appeal stands dismissed.