Gujarat High Court
Dixit Narsinhlal Thakkar vs State Of Gujarat on 9 November, 2023
Bench: M. K. Thakker
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.
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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
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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
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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
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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
