1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 176 OF 2008 IN STAMP NUMBER MAIN NO. 1336 OF 2008 Shri Chander Mohan Mehta, son of late Shri B. S. Mehta, Aged about 51 years, residing at House No. 509, Shantinagar, Rawanfond, Aquem Baixo, Navelim, Salcete, Goa. ...... Applicant V e r s u s 1. Mr. William Rosario Fernandes, son of late Inacio Fernandes, Aged about 61 years, residing atr House No. 133/1, Iind Ward, Colva, Salcete, Goa. 2. State Through P.P. ...... Respondents Mr. A. D. Bhobe, Advocate for the Applicant. CORAM: N. A. BRITTO, J. DATE: 8 th September, 2008. ORAL ORDER Heard Shri Bhobe, learned Counsel on behalf of the applicant who was the Complainant in a case filed by him under Section 138 of the Negotiable Instruments Act, 1881. 2. The accused was convicted initially by the learned J.M.F.C. by Judgment/Order dated 26.10.2007 but in appeal, the accused came to be 2 acquitted under Section 138 of the Negotiable Instruments Act, 1881, and, against the said acquittal, the Complainant seeks Special Leave to Appeal. 3. One of the grounds of acquittal, is that the subject cheque was issued by the accused in payment of a time barred debt which was not enforceable in terms of the explanation to Section 138 of the said Act. There is no dispute that the commission or brokerage fee was due and payable to the Complainant on 30.12.1999 and the subject cheque was issued on 27.08.2005 for part payment of the said fees. 4. The learned Addl. Sessions Judge by relying on the case of N. Ethirajulu Naidu v. K. R. Chinnikrishnan Chettiar (AIR 1975 Madras 333) and decisions of this Court in the case of Narendra V. Kanekar v. Bardez Taluka Co-op Housing Mortgage (2006 (6) Bom. C.R. 874) and Jagadamba Parishar Sahakari Pat Sanstha Maryadit (2006 (2) Bom. C.R. (Cri) 960), came to the conclusion that mere issuance of cheque for payment of a time barred debt or liability, does not constitute a promise to pay as contemplated by Section 25(3) of the Contract Act. Indeed, in the case of Narendra V. Kanekar v. Bardez Taluka Co-op Housing Mortgage (supra), this Court had observed thus : “As far as mere issue of cheque is concerned, issued after the expiry of period of limitation, then there is no dispute that this Court will be bound to follow the Judgment in the case of Ashwini Satish Bhat v. Shrijeevan Divarkar Lolienkar (supra), being a Judgment of co-ordinate bench and to that extent, the 3 ultimate finding in the case of Dr. K. K. Ramakrishnan v. Dr. K. K. Parthasaradhy (suprA), with respect, does not appear to be correct and, therefore, need not be followed. 9. Mere giving of 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 no doubt that in terms of the Indian Limitation Act, 1963, a signed acknowledgment of liability made in writing before the expiration of the 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 pay, furnishes a fresh cause of action. In other words, what Clause (3) of Section 25 of the Contract Act, in substance does is not to revive a dead right, for the right is never dead at any time, but to resuscitate the remedy to enforce payment by suit, and if the payment could be enforced by a suit, it means that it still has the character of legally enforceable debt as contemplated by the explanation below Section 138 of the Act. As far as this aspect of the case is concerned, the learned Division Bench observed that to determine as to whether or not a liability is legally enforceable, the provisions of the Contract Act, cannot be said to be irrelevant. This can provide a cause for a legal liability. Although the primary question answered by the Division Bench was that a cheque defines a promise to pay under Section 25(3) of the Contract Act, this view need not be followed by this Court in the light of the Judgment of 4 this Court in the case of Ashwini Bhat v. Shrijeevan Divakar Lolienkar (supra) and the other two Judgments referred to hereinabove.” 5. The learned Addl. Sessions Judge referred to Purushottam M. Gandhi v. Manohar K. Deshmukh (2007 (4) Bom. C.R. 404) but did not follow the same. In the case of Purushottam Maniklal Gandhi v. Manohar K. Deshmukh & anr. (supra), the amount was to be refunded in December 1996 and the Complainant accepted the cheque issued on 05.12.1996 and in that light that the acquittal of the accused was reversed. 6. Learned Counsel on behalf of the applicant has placed reliance on the case of Vijay Ganesh Gondhlekar v. Indranil Jairaj Damale (2007 (12) L. J. Soft 42)/(2007 ALL MR (Cri) 3486. This case stood on its own facts. In this case, the accused had taken a loan of Rs.20,000/- from the Complainant on 01.03.1995 and the loan was to be repaid within a period of one year. The accused had issued the cheque and had extended the date from time to time under his own signature and thus validated the cheque and the Court held that on each such occasion, there was a fresh promise as envisaged by Section 25 of the Contract Act and as well as an acknowledgment within the meaning of Section 18 of the Limitation Act. 7. In Narendra V. Kanekar v. Bardez Taluka Co-op Housing Mortgage (supra) this Court had also observed as follows: 5 “There appears to be preponderance of judicial opinion in support of the view that only if the cheque is issued in discharge of a legally enforceable debt or other liability that 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) GLT 408) and 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.” 8. The same is the view in Jagadamba Parishar Sahakari Pat Sanstha Maryadit (supra), this Court had also observed that mere giving of a cheque without anything more will not revive a barred debt, because cheque has to be given, as contemplated by the explanation in discharge of a legally enforceable debt. In this context, reference to the Judgment of the learned Division Bench in N. Ethirajulu Naidu v. K. R. Chinnikrishnan Chettiar (supra) can again be made. The learned Division Bench has stated that what the Section 25(3) of the Contract Act requires is an express promise made in writing and signed by the person to be charged therewith. Nothing short of an express promise, therefore, will provide a fresh period of limitation. It is settled law that an implied promise is not sufficient. The learned Division Bench also 6 noted the distinction between an acknowledgment under Section 18 of the Limitation Act, 1963 and a promise to pay under Section 25(3) of the Contract Act, 1872. Both have got to be in writing. In the case of first, it has got to be before expiry of the period and in the case of second, it could be beyond the period. 9. Since the accused has been acquitted on the basis of the view held by me in Narendra V. Kanekar v. Bardez Taluka Co-op Housing Mortgage (supra), which still holds the field, I have no other option but to follow the same. Consequently, I find this is not a fit case to grant Special Leave to Appeal. 10. Application dismissed. N.A. BRITTO, J. arp/*