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TMI Blog2006 (8) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... over of the cheque is not disputed. The short relevant contention raised is that the cheque was issued not for the discharge of any legally enforcible debt/liability. The liability, which is claimed to be discharged, is one that was barred under the law of limitation on the date of the cheque. The complainant examined himself as PW1 and proved Exts.P1 to P6. The accused examined himself as DW1. 3. The courts below concurrently came to the conclusion that all ingredients of the offence punishable under Section 138 of the N.I. Act have been established and that the petitioner has not succeeded in establishing the defence urged by him. Accordingly they proceeded to pass the impugned concurrent judgments. 4. Called upon to explain the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Works Ltd. (AIR 1954 SC 429), Chacko Varkey v. Thommen Thomas (1957 KLT 870 (FB), Ramachandran v. Velayudhan (1986 KLT 647) and Food Corporation of India v. Assam State Co-op. Marketing Consumer Federation Ltd. (2004) 12 SCC 360) was not specifically considered by the Division Bench and in these circumstances the said decision may require reconsideration. 7. I have considered the submissions. I am unable to agree with the learned counsel. It is evident that the decision of the Division Bench does not rest on the interpretation of Section 18 of the Limitation Act. Their Lordships had clearly held that a promise to pay a time barred debt cannot be assailed as an unenforcible promise on the ground that there is no consideration and the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 25(3) of the Contract Act. Before the act of drawing the cheque becomes complete by delivery of the cheque as insisted by Section 46 of the N.I. Act, there is a valid promise in writing (in the cheque) to pay such amount. When the cheque is delivered it must hence be held to be for the discharge of a legally enforcible debt or liability. In as much as the decision by the Division Bench does not rest on any acknowledgment under Section 18 of the Limitation Act, the precedents referred above in paragraph 6 cannot persuade this court to hold that there is any conflict between the dictum in Ramakrishnan and those decisions. The challenge raised on merits must, in these circumstances, fail. 9. The only other contention raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, I agree with the learned counsel for the petitioner that it does not conform to the mandate of Section 30 Cr.P.C. Appropriate modification of the default sentence can be done. 11. In the nature of the relief which I propose to grant, it is not necessary to wait for issue and return of notice to the respondent. 12. In the result: (a) This revision petition is allowed in part. (b) The impugned verdict of guilty and conviction of the petitioner under Section 138 of the N.I. Act are upheld. But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo imprisonment till rising of court. He is further directed under Section 357(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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