THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARA CRIMINAL PETITION No.7968 of 2009 ORDER: The petitioner is accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The only contention put forward by the petitioner’s counsel in this criminal petition is that even as per allegations in the complaint, the dishonoured cheque dated 28.02.2008 was drawn by the accused in favour of the complainant towards sale consideration paid by the complainant to the accused under and in pursuance of agreement for sale dated 10.01.2002. Though under the agreement, only Rs.35,000/- was paid, as per allegations in the complaint, total value of the site to the extent of Rs.2,94,000/- was paid by the complainant to the accused thereafter. The said dates of payment are not before this Court. It is further alleged that the cheque was drawn by the accused towards refund of sale consideration together with resultant loss suffered by the complainant because of frustration of the contract. Though the agreement prescribes six months time for the accused to execute registered sale deed in favour of the complainant under Article 54 of the Limitation Act 1963, a Suit for specific performance of an agreement for sale can be filed within three years from the date of the plaintiff having notice of refusal of performance. In a contract relating to purchase of immovable property, time is not essence of such contract, unless contrary is proved. There is no material before this Court to show when the complainant gave notice to the accused for specific performance of the agreement for sale. Further, the cheque amount represents consideration paid under the agreement for sale in respect of immovable property, which amount has got charge over the property covered by the agreement. A Suit for enforcement of charge can be filed within twelve years of creation of the charge. Thus, viewed from any angle, it would be premature for this Court to conclude that liability under the cheque is in respect of a time barred debt or liability. However, it is left to the trial Court to consider this point also, having regard to evidence and facts to be placed by both the parties during trial before that Court. There are no grounds for quashing proceedings in the pending case in the lower Court. 2. In the result, the Criminal Petition is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:16.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.7968 of 2009 Dt:16.12.2011 ysk