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TMI Blog2020 (2) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... 1992 and indisputably the last supply was on or about 30.6.1992. Seven bills for a total sum of Rs. 1,38,897/- was raised on the accused. On 15.5.1997 almost 5 years after the last supply was made, the accused issued cheque bearing no.548403 for Rs. 1,38,897/-which cheque was dishonoured on the same day, i.e., 15.5.1997 on the ground "account closed". The complainant therefore sent notice to the accused vide Advocate's Notice dated 23.5.1997 which has been received by the accused and the accused has replied denying liability, which reply was received after the complaint was filed. But since no reply was received within 15 days as contemplated under Section 138 of the Negotiable Instruments Act, 1881, this complaint was filed. 3. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh High Court in the case of Girdhari Lal Rathi v.P.T.V.Ramanujachari [1998] (94) Comp Cas 139 concluded that in case 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 debt was not legally enforceable. In view of this conclusion, the trial Court did not consider whether the complainant has proved the ingredients of offence punishable under Section 138 of the Negotiable Instruments Act 1881 and dismissed the complaint. This is the order that is impugned in this appeal. 5. The accused has not been appearing for quite some time. The Court notings' indicate that warrant of arrest under Section 390 of Cr.P.C. is duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red debt amounts to a written promise to pay the said debt within the meaning of Section 25(3) of the Indian Contract Act, 1872 ? (ii) If it amounts to such a promise, does such a promise, by itself, create any legally enforceable debt or other liability as contemplated by Section 138 of the Negotiable Instruments Act, 1881 ? 8. The Division Bench came to the conclusion that a cheque is a promise within the meaning of sub-section (3) of Section 25 of the Contract Act and what follows is, when a cheque is drawn, a debt which is not enforceable only by reason of bar of limitation, the cheque amounts to a promise governed by sub section 3 of Section 25 of the Contract Act. Such promise which is an agreement, becomes exception to the general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned by the Sub-section (3) of Section 25 of the Contract Act. Such promise which is an agreement becomes exception to the general rule that an agreement without consideration is void. Though on the date of making such promise by issuing a cheque, the debt which is promised to be paid may be already time barred, in view of Sub-section(3) of Sectin 25 of the Contract Act, the promise/agreement is valid and, therefore, the same is enforceable. The promise to pay time barred debt becomes a valid contract as held by the Apex Court in the case of A.V.Moorthy (supra). Therefore, the first question will have to be answered in the affirmative. 19. Under the Explanation to Section 138, the debt or other liability referred to in the main Section h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Therefore, while answering second Question, we are specifically dealing with a case of promise created by a cheque issued for discharge of a time barred debt or liability. Once it is held that a cheque drawn for discharge of a time barred debt creates a promise which becomes enforceable contract, it cannot be said that the cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt or liability becomes enforceable by virtue of Sub- section (3) of Section 25 of the Contract Act. Thus, such cheque becomes a cheque drawn in discharge of a legally enforceable debt as contemplated by the explanation to Section 138 of the said Act of 1881. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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