High Court
Case Details
Crl.A. 1/2011 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER (ORAL) This is an appeal under Section 378 of the Code of Criminal Procedure, 1 973, arising out of the judgment and order, dated 25.11.2009, passed, in Crimina l Appeal No. 44 of 2009, by the learned Addl. Sessions Judge (FTC No. 2), Kamrup , Guwahati, whereby the learned Addl. Sessions Judge has set aside the judgment and order, dated 29.06.2009, passed, in Complaint Case No. 8193(c)/2006, convict ing the accused-respondent herein, under Section 138 of the Negotiable Instrumen ts Act, 1881 (in short, ’NI Act’) and sentencing him to suffer simple imprisonme nt for a period of 6 (six) months and pay a sum of Rs. 3 Lakhs, as compensation, within 3 (three) months from the date of passing of the judgment. I have, however, heard Mr. R. Chakraborty, learned counsel, and Mr. R. M
Legal Reasoning
I have heard Mr. A. K. Purkayastha, learned counsel, appearing for the c 2. Consequent to the setting aside of the impugned judgment and order, date d 29.06.2009, of the learned trial Court, the accused-respondent, in terms of th e subsequent judgment and order, dated 25.11.2009, which forms the subject matte r of this appeal, stands acquitted. 3. omplainant-appellant. None has appeared on behalf of the accused-respondent. 4. azumdar, learned counsel, as amicus curiae. 5. While considering the present appeal, one needs to bear in mind the para meters of the powers of an appellate Court in dealing with a finding of acquitta l recorded in favour of an accused. 6. While considering the present appeal, it needs to be noted that the scop e of the appellate Court, in an appeal, arising out of acquittal, is distinct an d different from the scope of an appellate court’s power in an appeal arising ou t of conviction of an accused. The material distinction between the two is that it is possible for an appellate Court, while sitting in an appeal, arising out o f conviction of an accused, to take a view, which is reasonable, but different f rom the view, which the trial Court may have taken; whereas a Court, while sitti ng in an appeal, arising out of acquittal, cannot take a view different from the decision of the Court, which has acquitted the accused, unless the appellate Co urt has reasons to take a view that the conclusion, which the Court, while acqui tting the accused, had reached, is completely irrational or is based on a total misreading of the evidence on record leading to miscarriage of justice or is per verse in the sense that the finding of acquittal has been reached contrary to th e weight of the evidence on record or on a misconception of law. 7. In short, thus, interference with the judgment of acquittal is possible only when the view, which the Court, while acquitting an accused has taken, is f ound to be wholly irrational and unacceptable. When two views were possible on t he basis of the evidence on record, it is permissible for a Court, while sitting in an appeal, arising out of conviction, to take a view different from the one, which may have been taken by the trial Court. On the other hand, while sitting on an appeal against acquittal, a Court would not interfere with the finding of acquittal if there were, on the basis of the evidence on record, two views reaso nably possible. Interference, with a finding of acquittal, is permissible only w hen the conclusion, which has been reached by the trial Court, while acquitting an accused, is such, which a rational mind cannot agree to, or where the conclus ion, as regards acquittal, was reached by ignoring the evidence on record or who lly contrary to the evidence on record or on misconception of law or on the basi s of inadmissible pieces of evidence and/or the law relevant thereto. What is also of immense importance to note, while considering an appeal 8. against the acquittal, is that an accused is presumed to be innocent until he is proved to be guilty and an order of acquittal bolsters this presumption and str engthens thereby the case of the accused that he is innocent. (See Bhajan Singh alias Harbhajan Singh and others -vs- State of Haryana, reported in (2011) 7 SCC 421, Pabitar Singh -vs- State of Bihar (AIR 1972 SC 1899), Tota Singh and anoth er -vs- State of Punjab, reported in (1987) 2 SCC 529, and Ram Swaroop v. State of Rajasthan, reported in (2004) 13 SCC 134). 9. Bearing in mind the power of the appellate Court, while dealing with an appeal against acquittal, let me, first, take into account the material facts, w hich have given rise to the present appeal. 10. The present appellant, as complainant, launched prosecution of the accus ed-respondent by filing a complaint, the case of the complainant being, in brief , thus: The accused borrowed a sum of Rs. 2,50,000/- from the complainant with the stipulation that the accused would repay the amount aforementioned to the co mplainant as and when the complainant asked for payment thereof. However, on de mand having been made by the complainant, since the accused failed to make payme nt of his debt amounting to Rs.2,50,000/-, he (accused) issued a cheque, for a s um of Rs.2,50,000/-, on 03.07.2006, in favour of the complainant, drawn at Pragj yotish Gaonliya Bank, Uzanbazar Branch, Guwahati. On receipt of the cheque, dat ed, 03.07.2006, the complainant deposited the cheque in his account, at Pragjyot ish Gaonliya Bank, Chamata Branch, for encashment. However, the cheque bounced back due to insufficiency of fund in the account of the accused. Thereafter, ha ving issued a statutory notice, in terms of the requirements of Section 138 of t he NI Act, the complainant, as already indicated above, lodged the complaint see king prosecution of the accused under Section 138 of the NI Act. 11. The learned trial Court concluded, at the end of trial, that the accused had given the cheque, in question, towards discharge of his liability and, as t he cheque had been dishonoured due to insufficiency of fund in the account of th e accused and despite this fact having been brought by the complainant to the no tice of the accused, since the accused had failed to discharge his liability, th e complainant had rightly taken recourse to Section 138 of the NI Act and had su ccessfully proved that the accused had committed an offence punishable under Sec tion 138 of the NI Act. With the conclusion, so reached, the accused was convic ted by the learned trial Court and the sentence, as mentioned above, followed. 12. Aggrieved by his conviction and the sentence, which had been passed agai nst him, the accused preferred an appeal, which gave rise to Criminal Appeal No. 44/2009. As the appeal has been allowed by the judgment and order, dated 25.11 .2009, aforementioned, the complainant is, now, before this Court with the prese nt appeal. 13. On perusal of the impugned judgment and order, passed by the learned low er appellate Court, acquitting the accused, what attracts the eyes, most promine ntly, is that, according to the learned lower appellate Court, the loan was obta ined by the accused on 21.03.2003; whereas the cheque was issued on 03.07.2006. 14. Thus, the cheque, as the learned lower appellate Court has pointed out, was issued more than 3 (three) years after the loan had been obtained. In other words, according to the learned trial Court, the cheque, in question, was issue d on a date beyond the prescribed period of limitation for recovery of the loan, which had been taken by the accused on 21.03.2003. 15. In view of the fact that the cheque was, admittedly, issued beyond the p eriod of limitation prescribed for recovery of the sum of money, which the compl ainant had given to the accused, the learned lower appellate Court has pointed o ut that in terms of the provisions of Section 138 of the NI Act, a complaint may be made, when a cheque is dishonoured on the ground of insufficiency of fund in the account of the accused, but, as indicated by the Explanation, appended to S ection 138, a debt must be one, which is legally enforceable. 16. In other words, according to the learned lower appellate Court, a crimin al prosecution under Section 138 of the NI Act can be instituted if a cheque is dishonoured not merely due to insufficiency of fund in the account of the accuse d, but also when the cheque is proved to have been issued for the discharge, in whole or in part, of the debt or liability, which was in existence or enforceabl e. Consequently, when a debt or liability becomes time-barred or legally unenfo rceable, prosecution, under Section 138 of the NI Act, cannot be sustained even if the cheque, issued in such a case, comes to be dishonoured on account of insu fficiency of fund in the account of the drawer of the cheque. 17. In the case at hand, points out the learned lower appellate Court, since the accused had taken the loan, on 21.03.2003, the right to recover the loan, s o advanced to the accused, stood extinguished by period of limitation on 20.03.2 006, and, thus, when the cheque was issued, on 03.07.2006, there was no existing or enforceable debt or liability of the accused inasmuch as the debt or liabili ty, if any, stood barred by the prescribed period of limitation. Consequently, concluded the learned appellate Court, Section 138 of the NI Act was not attract ed. 18. Based on the conclusion reached, as indicated above, the learned lower a ppellate Court interfered with the judgment and order of conviction of the accus ed-respondent and acquitted him accordingly. 19. While considering the present appeal, it needs to be noted that in order to invoke Section 138 of the NI Act, a debt or liability must, in the light of the Explanation to Section 138, be enforceable on the date, when the cheque, whi ch becomes the basis for prosecution, was issued. 20. There can be no doubt that, in the present case, since the loan was adva nced on 21.03.2003, the right to recover the loan stood barred by limitation on 20.03.2006 and, hence, on 03.07.2006, when the accused-respondent issued the che que, in question, there was no enforceable debt or liability on the part of the accused. The question, however, is, as to when a debt or liability becomes time-b 21. arred? Whether it is possible for a person, who is under debt or liability, to e nter into a contract with the person to whom he had the debt or liability to pay , that he would make the payment of his debt or liability? My quest for an answer to the above question brings me to Section 25 of 22. the Contract Act, 1872. Sub-Section (3) of Section 25, which, being relevant in the present appeal, is reproduced below: (cid:28)25. Agreement without consideration, void, unless it is in writing and register ed or is a promise to compensate for something done or is a promise to pay a deb t barred by limitation law An agreement made without consideration is void, unless- (1) it is expressed in writing and registered under the law for the time being i n force for the registration of 9[documents], and is made on account of natural love and affection between parties standing in a near relation to each other; or unless (2) it is a promise to compensate, wholly or in part, a person who has already v oluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless (3) it is a promise, made in writing and signed by the person to be charged ther ewith or by his agent generally or specially authorized in that behalf, to pay w holly or in part a debt of which the creditor might have enforced payment but fo r the law for the limitation of suits. (cid:29) (Emphasis added) 23. From a cautious and careful reading of the provisions of Section 25 of t he Contract Act, 1872, as a whole, and, particularly, Sub-Section (3) thereof, i t becomes clear that the law does not prohibit a person to make a promise, in wr iting and signed by him, to pay wholly, or in part, a debt, which his creditor m ight have enforced payment of, but for the law of limitation in instituting a su it for recovery of money, meaning thereby that even if a debt becomes time-barre d and a suit cannot be instituted for recovery of such a debt by the creditor, i t does not take away the right of the debtor to make a promise, in writing and s igned by him, to make payment of his debt. When such a promise is made, it beco mes an agreement, which, being valid in law, turns into an enforceable contract. 24. The contract, so formed, can, therefore, be enforced. Considered in thi s light, it becomes clear that when a debtor, whose debt or liability becomes ti me-barred, promises, in writing and signs the same, an enforceable contract come s to be created, in respect of the time-barred debt or liability, and, in such a case, the promisor can be forced to make good his promise 25. Logically extended, what the above discussion shows is that the accused- respondent, in the present case, was free to give it, in writing, and signed by him, that notwithstanding the fact that his debt had become time-barred and was not enforceable, because of expiry of the period of limitation for recovery of t he money, which he had received as loan, he would, nonetheless, make payment of his debt. With the promise, so made, had the accused-respondent issued a cheque for the discharge, in whole or in part, of his debt and had a such a cheque bee n dishonourned on the ground of insufficiency of fund in the account of the accu sed-respondent, the complainant would have derived the right to give requisite n otice to the complainant-appellant demanding money covered by the cheque and, on the failure of the accused-respondent to make payment, the complainant-appellan t would have been entitled to prosecute the accused-respondent under Section 138 of the NI Act and such a prosecution would have been legally permissible and su stainable. It has been contended by Mr. Purkayastha, learned counsel, that since th 26. e cheque, in question, has been issued by the respondent, it is an acknowledgeme nt of the respondent’s debt and even if the debt or liability had stood time-bar red, the cheque, in question, being an acknowledgement of debt, creates an enfor ceable contract within the meaning of Section 25(3) of the Contract Act, 1872. I t is also the contention of Mr. Purkayastha, learned counsel, that the cheque, i n question, has the affect of extending the period of enforcement of the debt or liability, which had been, originally, created by virtue of the loan, taken on 21.03.2003, by the accused-respondent. 27. In order to correctly appreciate the submissions made on behalf of the a ppellant, let me point out that a cheque, as defined by Section 6 of the N.I. Ac t, means, in substance, a bill of exchange drawn on a specified banker and not e xpressed to be payable otherwise than on demand. 28. From a bare reading of the definition of the cheque, what clearly transp ires is that it is a bill of exchange, which is drawn, on a specified bank, maki ng the bearer of the cheque entitled to receive, on demand, payment of the sum o f money mentioned in the cheque. A cheque, can, at best, be construed to mean an acknowledgement, in writing, of a debt or liability, which may or may not have Coupled with the above, Section 18 of the Limitation Act, 1963, which em remained legally enforceable. 29. bodies the provisions, as regards extension of liability, lays down as follows: (cid:28)18. Effect of acknowledgment in writing - (1) Where before the expiration of the prescribed period for a suit or applicati on in respect or any property or right, an acknowledgment of liability in respec t of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derive d his title or liability, a fresh period of limitation shall be computed from th e time when the acknowledgment was so signed. (2) Where the writing containing thee acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of th e Indian Evidence Act,1872 ( 1 of 1872), oral evidence of its contents shall not be received. Explanation - For the purposes of this section, - a. an acknowledgment may be sufficient though it omits to specify the exact natu re of the property or right, or avers that the time for payment, delivery, perfo rmance or enjoyment has not yet come or is accompanied by refusal to pay, delive r, perform or permit to enjoy, or is coupled with a claim to set-off, or is addr essed to a person other than a person entitled to the property or ornight; b. the word \signed\ means signed either personally or by an agent duly Authoriz ed in this behalf ; and c. an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. (cid:29) 30. From a bare reading of Section 18 of the Limitation Act, 1963, it become s clear that an acknowledgement of liability would mean extension of liability i f the acknowledgment is made in writing and signed by the person, who is under t he liability, provided that, as envisaged by Section 18, the acknowledgement, in writing, is made before the period, prescribed for institution of suit (or maki ng of application, as the case may be) expires. It is, therefore, clear that if there is an acknowledgement, in writing, of any debt or liability by a person, s uch acknowledgement would have the effect of extending the period of limitation for institution of suit or for making of application, as the case may be, provid ed that the acknowledgement is made, as contemplated by Section 18, before the e xpiry of the period of limitation meant for institution of the suit or for makin g of application, as the case may be. Conversely put, if an acknowledgement of l iability is given, in writing, after expiry of the period of limitation, as cont emplated by Section 18, such acknowledgement would not have the affect of extend ing the period of limitation. 31. Reverting to Section 25 of the Contract Act, 1872, which Mr. Purkayastha refers to, and relies upon, it may be noted that any agreement made without con sideration is void unless, in the light of Section 25(3), it is a promise made i n writing and signed by the person to be charged therewith or by his agent gener ally and specially authorized in that behalf to pay, wholly or in part, the debt of which the creditor might have enforced payment, but for the law for the limi tation of suits. In other words, in order to take recourse to Section 25(3), one has to s 32. how that a person, who would have been liable to repay a debt, but because of th e period of limitation prescribed for institution of the suit, has made a promis e, in writing, and signed the same. If such a ’promise’, as contemplated by Sect ion 25(3), is made, it would make the ’promise’ a contract and would, therefore, be legally enforceable. 33. It is, thus, clear that unless there is ’a promise’ made, in writing, an d signed by the person to be charged therewith, the writing would not lead to an enforceable contract. A cheque can, by no means, be treated as a ’promise’ made , in writing, to make payment of a debt, which is, otherwise, not enforceable by law; more so, in the facts of the present case, wherein the recovery of the deb Section 138 reads as under: t was already barred by the prescribed period of limitation. Turning to Section 139 of the NI Act, which raises the presumption of de 34. bt or liability of the person, who issues a cheque, one needs to carefully take note of not only Section 138, but also of Section 139 of the NI Act. 35. (cid:28)138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account f or the discharge, in whole or in part, of any debt or other liability, is return ed by the bank unpaid, either because of the amount of money standing to the cre dit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank , such person shall be deemed to have committed an offence and shall without pre judice to any other provisions of this Act, be punished with imprisonment for 2[ \a term which may extend to two year\], or with fine which may extend to twice t he amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever i s earlier. (b) The payee or the holder induce course of the cheque, as the case may be, mak es a demand for the payment of the said amount of money by giving a notice, in w riting, to the drawer, of the cheque, [\within thirty days\] of the receipt of i nformation by him from the bank regarding the return of the cheques as unpaid, a nd (c) The drawer of such cheque fails to make the payment of the said amount of mo ney to the payee or, as the case may be, to the holder in due course of the cheq ue, within fifteen days of the receipt of the said notice. Explanation: For the purpose of this section, (cid:28)debt or other liability (cid:29) means a legally enforceable debt or other liability. (cid:29) (Emphasis is added ) Close on the heels of Section 138, Section 139 reads as under: 36. (cid:28)139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referr ed to in Section 138 for the discharge, in whole or in part, or any debt or othe r liability. (cid:29) 37. A careful reading of Section 138 shows that though Section 138 makes it an offence if a cheque is dishonoured for insufficiency of fund by the bank prov ided that the cheque has been issued for discharge, in whole or in part, of the debt or other liability, the Explanation to Section 138 makes it abundantly clea r that the expression (cid:28)debt or other liability (cid:29), appearing in the body of Sectio n 138, means ’a legally enforceable debt or other liability’. 38. To put it a little differently, in order to attract the penal provisions of Section 138, the cheque, which is dishonoured for ’insufficiency of fund’, o ught to have been issued for discharge, in whole, or in part, of a ’legally enfo rceable debt or other liability’. Resultantly, therefore, the penal provisions o f Section 138 would not be attracted if a cheque is issued for discharge, in who le or in part, of a debt or liability, which has ceased to be legally enforceabl e. 39. What emerges from the above discussion is that dishonour of a cheque by the banker for insufficiency of fund would not necessarily result into an offenc e punishable by Section 138 if the cheque was issued for discharge, in whole or in part, of a debt or other liability, which was not enforceable in law. However , dishonour of a cheque would become an offence punishable under Section 138 if the cheque, which is dishonoured for insufficiency of fund by the bank, had been issued for discharge, in whole or in part, of a debt or other liability, which was legally enforceable. 40. Bearing in mind the scope of Section 138, when I turn to Section 139, I notice that what Section 139, as correctly pointed out by Mr. Mazumdar, learned Amicus Curiae, does is to raise a presumption, the presumption being that unles s the contrary is proved, the Court shall presume that the holder of a cheque re ceived the cheque for the discharge, in whole or in part, or any debt or other l iability. 41. Section 139 does not, thus, raise any presumption that a cheque, which o ne issues, is for the discharge, in whole or in part, of any enforceable debt or other liability. In order to, therefore, invoke the penal provisions embodied in Section 138, one is not to only prove that a cheque was issued by the accused and has been dishonoured by the bank for insufficiency of fund, but he must als o prove that when the cheque was drawn, there was a ’legally enforceable’ debt o r liability. No doubt, Section 139 raises a presumption that when a cheque is is sued, such issuance of the cheque shall be presumed to be for the purpose of dis charge, in whole or in part, of a debt or liability, but the presumption, so rai sed by Section 139, does not go to the extent of raising the presumption that th e debt or liability, which is sought to be discharged by issuance of cheque, was an existing debt or liability or an enforceable debt or liability on the date o f issuance of cheque. 42. While considering the provisions of Section 138 vis-à-vis 139 of the NI Act, it is of utmost importance to note that in the absence of the Explanation o f ’debt’ or ’liability’, as given in the NI Act, the expression, ’debt’ or ’othe r liability’ would have meant any debt or liability irrespective of the fact as to whether the debt or liability was legally enforceable or not. The Explanation to Section 138 has, however, changed the entire complexion of Section 138 by ma king it crystal clear that the expression, ’debt’ or ’liability’, appearing in S ection 138, shall mean a legally enforceable debt or other liability. This Expl anation to Section 138 is, however, to be read for the purpose of Section 138 al one and not for Section 139 inasmuch as the Explanation aforementioned has kept itself confined to Section 138 by laying down, if I may reiterate, thus, (cid:28)For th e purposes of this section, ’debt or other liability’ means a legally enforceabl e debt or other liability (cid:29). In other words, the Explanation to Section 138 has to be read for the purpose of Section 138 alone. 43. When, therefore, Section 139 is read de hors the Explanation to Section 138, it logically follows that the presumption, which Section 139 contemplates, means merely a presumption that the holder of the cheque holds the cheque for di scharge, in whole or in part, of any debt or liability and that the debt or liab ility, so contemplated, may or may not be enforceable in law. If the debt or li ability is found to be not enforceable in law, Section 138, in the light of its Explanation, would not apply. 44. Reference made, with regard to the above, to the case of Krishna Janardh an Bhat -vs- Dattatraya G. Hegde, reported in (2008) 4 SCC 54, by the learned Am icus Curiae, is not at all misplaced inasmuch as the Supreme Court has clearly p ointed out, in Krishna Janardhan Bhat (supra), that Section 138 of the NI Act ha s the following three ingredients: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability, which presupposes a legally enforceab le debt; and (iii) that the cheque so issued had been returned due to insufficiency of funds. 45. Out of the three ingredients, Section 139 merely raises a presumption wi th regard to second ingredient, namely, that the cheque was drawn for discharge, in whole or in part, of any debt or other liability, but the drawing of the che que does not go to the extent of raising any presumption that on the date of the issuance of the cheque, the debt or liability, which was sought to be discharge d by issuance of the cheque, had been an existing or legally enforceable or reco verable debt or liability. This becomes evident from a careful reading of the ob servations made in Krishna Janardhan Bhat (supra), which read as under : (cid:28)29. that there is a legally enforceable debt: (i) (ii) that the cheque was drawn from the account of bank for discharge in whol e or in part of any debt or other liability which presupposes a legally enforcea ble debt; and (iii) s. 30. The proviso appended to the said section provides for compliance with le gal requirements before a complaint petition can be acted upon by a court of law . Section 139 of the Act merely raises a presumption in regard to the second asp ect of the matter. Existence of legally recoverable debt is not a matter of pres umption under Section 139 of the Act. It merely raises a presumption in favour o f a holder of the cheque that the same has been issued for discharge of any debt that the cheque so issued had been returned due to insufficiency of fund Section 138 of the Act has three ingredients viz or other liability. The courts below, as noticed hereinbefore, proceeded on the basis that S 31. ection 139 raises a presumption in regard to existence of a debt also. The court s below, in our opinion, committed a serious error in proceeding on the basis th at for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach o n the part of the courts, we feel, is not correct. 32. An accused for discharging the burden of proof placed upon him under a s tatute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to m aintain silence. Standard of proof on the part of an accused and that of the pro secution in a criminal case is different. (cid:29) In the case at hand, too, the issuance of the cheque, dated 03-07-2006, 46. which forms the subject-matter of controversy, raises a presumption that the res pondent issued the said cheque, in question, for the discharge, in whole or in p (Emphasis is added) art, of a debt or liability; but the said cheque did not give rise to any presum ption that there was an existing or legally recoverable debt or liability. 47. Besides, therefore, proving that the cheque, in question, was issued by the respondent, the appellant ought to have had also proved that the said cheque was issued in respect of an existing or legally enforceable or recoverable debt . Later part of the requirement of Section 138 of the NI Act has not, however, b een proved or satisfied by the appellant. Because of the failure of the appellant to prove that the debt or liabil 48. ity, which the respondent sought to discharge, was a legally enforceable debt or liability, no offence, under Section 138 of the NI Act, could have been said to have been made out. The learned appellate Court was, therefore, wholly correct in pointing out that when the debt or liability, in question, was time-barred an d not recoverable by institution of appropriate suit, the mere dishonour of the cheque, for insufficiency of fund, would not give rise to the commission of an o ffence punishable under Section 138 if the debt or liability, which is sought to be discharged, in whole or in part, is not legally enforceable. In order to, however, sustain the appeal, Mr. Purkayastha, learned couns 49. el, has pointed out that the appellant’s evidence shows that the accused-respond ent had offered to issue a sale note in favour of the complainant-appellant as r egards the sale of the accused-respondent’s car in favour of the complainant-app ellant. This conduct, on the part of the respondent, exhibits, according to Mr. Purakayastha, that the respondent did acknowledge his debt, when he offered to i ssue the sale note. 50. While considering the above submission of the learned counsel for the ap pellant, what is of immense importance to note is that the complainant has, in n o uncertain words, also deposed that he had refused to accept the sale note. It is, therefore, clear that the complainant was unwilling to buy the car of the ac cused. It needs to be borne in mind that a sale is a transfer of right, title a 51. nd interest over a movable or immovable property by the transferor to the transf eree in consideration of value for such transfer. There cannot be a sale without there being an agreement between the two parties to the transaction of sale. Wh en the complainant declined to accept the offer to buy the car, in question, it cannot be said that the offer of a sale of the car was an acknowledgement by the accused-respondent of the latter’s debt or liability, which, in terms of Sectio n 18 of the Limitation Act, 1963, has to be in writing and signed by the person, who has the debt or liability. 52. Coupled with the above, as has been rightly pointed out by Mr. R Mazumda r, learned Amicus Curiae, there is nothing in the evidence on record to show tha t the offer of sale of the car was made by the accused-respondent before the exp iry of the period of limitation. Unquestionably, therefore, when the complaint h as not proved that there had been any acknowledgement, in writing, by the respon dent of his debt or liability, the period of limitation was not extended by any of the subsequent acts or conduct of the accused-respondent. 53. What crystallizes from the above discussion is that when the cheque, dat ed 03-07-2006, was issued, the debt or liability, which the respondent had incur red, already stood barred by limitation. Since the debt or liability was already stood barred by limitation, the debt or liability no longer remained enforceabl e in law, particularly, when there was no acknowledgement, in writing, of the de bt or liability before the expiry of the prescribed period of limitation. 54. Section 25(3) of the Contract Act could have come into play, had there b een a promise made, in writing, and signed by the respondent, to make payment of his time-barred debt or liability. There was no such promise made. Section 25(3 ), too, was, therefore, not invokeable to the facts of the present case. 55. Consequently, the cheque, dated 03-07-2006, which came to be dishonoured , did not give rise to an offence under Section 138 of the NI Act inasmuch as th e cheque, which was dishonoured, had not been issued in respect of any existing or enforceable debt or liability. The conclusion, therefore, reached by the lear ned lower appellate Court, that in respect of time-barred debt, when the cheque, in question, had been issued and when such a cheque had come to be dishonoured, though for insufficiency of fund, no offence could have been said to have been committed by the respondent under Section 138 of the NI Act. 56. In the circumstances, indicated above, interference by the learned lower appellate Court with the conviction of the accused-respondent was, therefore, w holly in accord with the law relevant thereto. Viewed from this angle, this Cour t does not find that the impugned conclusion, reached by the learned lower appel late Court and the consequential interference with the conviction of the accused -respondent as well as the sentence passed against him, suffered from any infirm ity, legal or factual. 57. ence by this Court. 58.
Decision
In the result and for the reasons discussed above, this appeal fails and The impugned judgment and order do not, therefore, call for any interfer the same shall accordingly stand dismissed. 59. Before parting with the records, I must express my appreciation for the valuable assistance, which has been rendered not only by Mr. R Chakraborty and M r. R Mazumdar, learned Amicus Curiae, but also by Mr. AK Purkayastha, learned co unsel, who has been very fair in his submissions made before this Court. 60. le assistance rendered to this Court. 61. osed of. 62. With the above observations and directions, this appeal shall stand disp Let the Amicus Curiae be paid a sum of Rs. 5,000/- each for their valuab Send back the LCR.