IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1564 OF 2007 APPLICATION NO.1564 OF 2007 APPLICATION NO.1564 OF 2007 Rajiv Bhagwanrao Jakkan ... Applicant Vs. Sau. Minakshi Kashinath Jakkan ... Respondent Mr. V.B. Naik i/by I.M. Khairdi for the Applicant. Mr. A.S. Shitole, APP for State. CORAM CORAM CORAM : R.S. MOHITE, J : R.S. MOHITE, J : R.S. MOHITE, J. DATE DATE DATE : 17TH JULY, 2008 : 17TH JULY, 2008 : 17TH JULY, 2008 P.C. P.C. P.C. :- :- :- 1. This is an application for leave to Appeal. 2. By the impugned judgment and order, the accused have been acquitted under Section 138 of the Negotiable Instruments Act. 3. On perusal of the impugned judgment and order, I find that the acquittal is based on cogent reasons. The loan was given on two dates and the last instalment was given on 5/2/1997 5/2/1997 5/2/1997. The cheque was issued on 22/9/2000, which is beyond the period of three years. The trial Court held that debt is not legally enforceable debt as 2 the recovery of debt was time barred. It was contended that the issuance of cheque even after the period of limitation would be a fresh cause of action within the meaning of Section 25(3) of the Negotiable Instruments Act. 4. Reliance was placed by the Division Bench judgment of Kerala High Court in the case of Dr. Kerala High Court in the case of Dr. Kerala High Court in the case of Dr. K.K.Ram K.K.Ram K.K.Ram vs. K.K. Parthasarthi vs. K.K. Parthasarthi vs. K.K. Parthasarthi. This judgment has been dealt with by a Single Judge of this Court in the case of Narendra V.Kanetkar Vs. The Narendra V.Kanetkar Vs. The Narendra V.Kanetkar Vs. The Barzed Barzed Barzed Taluka Co-operative Housing Mortgage Taluka Co-operative Housing Mortgage Taluka Co-operative Housing Mortgage Society Society Society Ltd. and Another reported in 2007 Ltd. and Another reported in 2007 Ltd. and Another reported in 2007 (Criminal) Criminal) Criminal) 275 275 275. The Single Judge of this Court has held that in view of Division Bench judgment of this Court and several other judgments which held that in case of time barred debt or other liability, Section 138 of the Act is not attracted and the accused cannot be convicted under Section 138 of the Act. Our Court has not followed the Division Bench judgment. There is observation in Para no.9 which suggest that a suit can be filed in pursuance to a promise made in writing and signed by the person to be charged therewith, as contemplated by Clause 3 of Section 25 of Law of Contract, then the debt becomes legally 3 enforceable and if a cheque is given in payment of such debt and is dishonoured and subsequently, the statutory notice is not complied with then the person making the promise in writing and issuing the cheque, would be liable to be punished under Section 138 of the Act. . This Paragraph does not mean that merely if the cheque is given for repayment of time barred loan, then conviction under Section 138 can follow. In this view of the matter, this is not a fit case for interference in an Appeal against acquittal. Hence, leave is refused. Consequently, appeal papers be filed. ( R.S. MOHITE, J.) R.S. MOHITE, J.) R.S. MOHITE, J.)