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TMI Blog2006 (4) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Act, which reads as follows: Explanation : purposes of this section, debt or other liability means a legally enforceable debt or other liability. 2. Some facts are required to be stated to dispose of this revision. 3. The complainant (respondent herein, is a Society having its business of advancing loans for the purposes of construction to is members, and, the accused is a member of the said Society. The accused and his wife has availed a loan of ₹ 3, 55, 000/- on 05-11-1996 with a condition to repay the same with interest at the rate of 18% or higher rate of interest plus 0.6% along with charges which might have been incurred by the said Complainant. The Complainant had called upon the wife of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Act is attracted but if a cheque is issued for the discharge of a time barred debt and it is dishonoured, the accused cannot be convicted under Section 138 of the Act. This view was first taken in Girdhari Lal Rathi v. P. T. V. Ramanujachari (1997) (2) Crimes 658), then by this Court in the case of Smt. Ashwini Satish Bhat v. Shrijeevan Divakar Lolienkar 1999 (1) G. L. T. 408 Joseph v. Devassia 2003 K. L. T. (3) 533 and it appears that the last judgment also has the imprimatur of the Apex Court in Special Leave to Appeal (Cri) No. 1785/2001, which was dismissed by Order dated 10-09-2001 and, therefore, needs to be followed by this Court. However, the question is as to what is the legal effect of the said declaration/affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel on behalf of the petitioner/accused has submitted that, the cheques in question were issued beyond the period of limitation and there was otherwise no acknowledgment of debt in writing given prier to the expiry of the period of limitation. Shri Padiyar has submitted that the said undertaking at the most may give a right to file a suit and recover the payment due on the said cheques but not for the purposes of prosecution under Section 138 of the Act. On the other hand, Shri Samant, the learned Counsel on behalf of the respondent/Complainant has submitted that the undertaking or promise given by the accused is legally enforceable under Section 25(3) of the Indian Contract Act and, therefore, the debt is still enforceable by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, to that extent, the ultimate finding in the case of Dr. K.K. Ramakrishnan v. Dr. K. K. Parthasarthy and Anr. (supra), with respect, does not appear to be correct and therefore need not be followed. 9. Mere giving a cheque, without anything more, will not revive a barred debt, because cheque has to be given, as contemplated by the explanatory in discharge of a legally enforceable debt. There is not doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgement of liability made in writing before the expiration of period of limitation, is enough to start a fresh period of limitation. Likewise, when a debt has become barred by limitation, there is also Section 25(3) of the Contract Act, by which, a written promise to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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