Gujarat High Court
Rathod Jitenrakumar Maganlal vs State Of Gujarat on 10 October, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.MA/3082/2023 ORDER DATED: 10/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 3082 of
2023
In
R/CRIMINAL APPEAL NO. 348 of 2023
With
R/CRIMINAL APPEAL NO. 348 of 2023
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RATHOD JITENRAKUMAR MAGANLAL
Versus
STATE OF GUJARAT
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Appearance:
MR. PIYUSH TRIVEDI, ADVOCATE FOR MR PRATIK B BAROT(3711) for
the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. DIVYAGNA JHALA , APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/10/2023
ORAL ORDER
ORDER IN CRIMINAL MISC. APPLICATION:-
1. This is an application filed 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, passed by the learned Additional Chief
Judicial Magistrate, Kheralu dated 22.9.2022 in Criminal Case No.
354 of 2019.
2. Heard, learned advocates appearing for respective parties and
perused the impugned judgment and order of the trial Court.
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3. Learned Advocate Mr. Piyush Trivedi appearing for Mr.
Pratik Barot, learned for the applicant submits that the trial Court
without considering the provisions of law, acquitted the respondent-
accused only on the ground that there was time barred debt and the
same is not enforceable under the Act.
3.1 Mr. Trivedi, 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 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
NEUTRAL CITATION
R/CR.MA/3082/2023 ORDER DATED: 10/10/2023
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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 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.
3.2 Mr. Trivedi, 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. By issuing the cheque, the
respondent had acknowedged the debt and therefore, the period of
limitation would start from the said date.
4. Considering the avernments made in the application and
submissions made by the learned advocates appearing for the
respective parties, there is some arguable case in favour of the
applicant, leave, as prayed for, is granted. This application is
allowed.
ORDER IN CRIMINAL APPEAL
1. The appeal is admitted. Learned APP Ms. Divyagna Jhala
waives service of notice of admission on behalf of respondent -
State. Learned advocate Mr. Chaudhary, who is appearing, would
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R/CR.MA/3082/2023 ORDER DATED: 10/10/2023
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waive service of notice of admission for and on behalf of the
respondent - accused.
2. Record and proceedings be called for from the concerned
(M. K. THAKKER,J)
BEENA SHAH
