K. RAMAKRISHNA GUPTAN Vs. BALACHANDRAN

JUDGEMENT

(1.) Whether the plea of limitation is available to an accused to contend that the dishonoured cheque was issued for a time barred debt and thereby no offence under S.138 of N.I. Act was committed, is the question that is to be settled in this case.

(2.) Appellant is the complainant. First respondent is the accused. Ext. P2 cheque was admittedly drawn in the account maintained by respondent in Peringode Branch of State Bank of India. Appellant presented the cheque for encashment. The cheque was for Rs.50,000/- It was dishonoured for want of sufficient fund under Ext. P3. Appellant sent Ext. P4 notice within the period demanding the amount covered by the dishonoured cheque. First respondent received the notice. He failed to pay the amount. He sent Ext. P5 reply disputing the liability. Complaint was lodged thereafter within the statutory period. Respondent pleaded not guilty. Appellant was examined as PW 2. The Manager of the Bank was examined as PW 1. Ext. P1 to P5 were also marked. Learned Magistrate on the evidence found that Ext. P2 cheque was issued by the respondent and it was dishonoured for want of sufficient funds as proved by the evidence of PW 1 and Ext. P1 ledger extract. But finding that Ext. P2 cheque was in respect of a time barred debt, learned Magistrate held that no offence under S.138 of N.I Act was committed. First respondent was acquitted under S.255(1) of CrPC. Complainant is challenging the order of acquittal in the appeal.

(3.) Appellant contended that court below did not properly consider the provisions of S.139 of N.I. Act and Ext. P2 cheque was issued towards discharge of an existing liability and by agreeing to repay the amount and issuing Ext. P2 cheque, a fresh contract has been entered into and therefore Ext. P2 cheque was issued towards the existing liability and the finding of the court below is unsustainable.