NEUTRAL CITATION
R/CR.MA/20139/2023 ORDER DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 20139
of 2023
In R/CRIMINAL APPEAL NO. 2559 of 2023
With
R/CRIMINAL APPEAL NO. 2559 of 2023
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DIXIT NARSINHLAL THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/11/2023
COMMON ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an appeal against the judgment and order of acquittal dated 30.09.2023, passed by the learned Chief Judicial Magistrate, Surat in Criminal Case No.21506 of 2019. Page 1 of 5 Downloaded on : Thu Nov 09 20:52:53 IST 2023
NEUTRAL CITATION R/CR.MA/20139/2023 ORDER DATED: 09/11/2023 undefined
2. Mr. Tushar Chaudhary, learned Advocate submits that though the disputed cheque as well as signature was not disputed by the respondent - accused, the learned trial Court had acquitted the respondent - accused. Learned advocate further submits that the learned Court below erred in observing that the debt was of the February, 2016 and the cheque was issued in the month of March, 2019 i.e. beyond the period of limitation. Therefore, the same is time barred debt. Mr. Tushar Chaudhary, learned advocate has relied upon the decision of the Bombay High Court rendered in the case of Mr. Dinesh B.Chokshi Vs. Rahul Vasudeo Bhatt passed in Criminal Application Nos. 2934 of 2007 and allied applications wherein, it has observed as under:-
"9. Thus, Sub-section (3) of Section 25 of the Contract Act is an exception to the general rule that an agreement made without consideration is void. Sub-section (3) of Section 25 of the Contract Act applies to a case where there is a promise made in writing and signed by a person to be charged therewith to pay wholly or in part a debt which is barred by law of limitation. A promise covered by Sub-section (3) becomes enforceable agreement notwithstanding the fact that it is a Page 2 of 5 Downloaded on : Thu Nov 09 20:52:53 IST 2023 NEUTRAL CITATION R/CR.MA/20139/2023 ORDER DATED: 09/11/2023 undefined promise to pay a debt which is already barred by limitation. Thus, Sub-section (3) of Section 25 of the Contract Act applies to a promise made in writing which is signed by a person to pay a debt which cannot be recovered by reason of expiry of period of limitation for filing a suit for recovery. Therefore, if a debtor after expiry of the period of limitation provided for recovery of debt makes a promise in writing signed by him to pay the debt wholly or in part, the said promise being governed by Sub-section (3) of Section 25 of the Contract Act becomes ash 11 crappln-2933.07-grp an agreement which is enforceable in law. By virtue of the promise governed by Sub-section (3) of Section 25 of the Contract Act, the time barred debt becomes enforceable. The Sub-section (3) of Section 25 of the Contract Act does not apply to promise to pay all categories of debts which are not enforceable in law. It applies only to a debt which is not recoverable in law only on the ground of bar created by the law of limitation. Thus, the promise under Sub-section (3) of Section 25 of the Contract Act will not validate a debt which is not enforceable on a ground other than the ground of bar of limitation. For example, if there is a promise to pay an amount advanced for immoral purposes which is hit by Section 23 of the Contract Act, it will not attract Sub-section (3) of Section 25 of the Page 3 of 5 Downloaded on : Thu Nov 09 20:52:53 IST 2023 NEUTRAL CITATION R/CR.MA/20139/2023 ORDER DATED: 09/11/2023 undefined Contract Act and the said provision will be attracted only when a promise is made in writing and signed by the promisor to pay a debt which is barred by limitation."
3. Mr. Tushar Chaudhary, learned advocate has drawn the attention of this Court with regard to Section-18 of the Limitation Act, which provides that on giving acknowledgment of the debt, the fresh limitation period would be started. As by issuing the cheque, the respondent had acknowledged the debt and therefore, the period of limitation would start from the said date.
4. Considering the averments made in the application and submissions made by the learned advocates appearing for the respective parties, this Court finds that there is some arguable case in favour of the applicant, therefore, leave, as prayed for, is granted. This application is allowed. ORDER IN CRIMINAL APPEAL:
1. The appeal is admitted. Mr. Bhargav Pandya, learned APP waives service of notice of admission on behalf of Page 4 of 5 Downloaded on : Thu Nov 09 20:52:53 IST 2023 NEUTRAL CITATION R/CR.MA/20139/2023 ORDER DATED: 09/11/2023 undefined respondent - State.
2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five Thousand only) against the respondent - original accused.
3. Record and proceedings be called for from the concerned court. Registry is directed to list the Criminal Appeal in seriatim.
(M. K. THAKKER,J) A. B. VAGHELA Page 5 of 5 Downloaded on : Thu Nov 09 20:52:53 IST 2023