K. G. Balakrishnan, J. -
(2.)This appeal is directed against the order passed by a learned single Judge of the High Court of Karnataka. The appellant herein filed a complaint before the Magistrate alleging that the respondent herein had committed an offence punishable under S.138 of the Negotiable Instruments Act, 1881 (for short, " the Act").The appellant alleged that he and his two friends had advanced a sum of Rs. 7.5 lakhs to the respondent about four years back the said amount despite repeated demands and finally at the request of the appellant, on 30-3-1998 the respondent issued a cheque in favour of the appellant. The appellant presented the cheque was dishonoured by the bank for the reason " Account closed ". Thereafter , the appellant issued a statutory demand notice and as the respondent failed to pay the amount, a complaint was filed before the magistrate by the appellant. In the complaint, it was alleged that the appellant and his two friends advanced the said sum of Rs. 7.5 lakhs the respondent about four years prior to the respondent. The learned Magistrate issued summons to the respondent. The respondent filed a Criminal Revision before the IInd Addl. Sessions Judge, Mysore, alleging that the complaint was not maintainable as the amount advanced by the appellant to him was about four years prior to the date of issue of the cheque, and in view of the 'Explanation' appended to S. 138 of the Act, there was no legally enforceable debt or liability as against the respondent. The Addl. Sessions Judge accepted this plea and held that even on the basis of the averments in the complaint and the sworn statement of the complainant, the alleged borrowing was four years prior to the issuance of the cheque and hence that debt was not legally enforceable in view of the bar of limitation and, therefore, the Magistrate was in error in taking cognizance of the alleged offence under S. 138 of the Act. As a result, the Addl. Sessions Judge quashed the entire proceedings and aggrieved thereby, the appellant filed a Criminal Revision before the High Court of Karnataka but the learned single Judge upheld the view of the Addl. Sessions Judge. The appeal has now come up before us.
(3.)We heard learned counsel for the appellant. Learned counsel contended that it was incorrect on the part of the Sessions Judge to hold that there was no legally enforceable debt or liability on the part of the respondent. He also contended that when a cheque is issued, under S. 118 of the Act, it has to be presumed that it was drawn for consideration. It was further contended that even though the appellant and his friends advanced the loan about four years back, the respondent had acknowledged this liability in his balance sheet and that even for the purpose of a civil suit, such debt or liability is not barred by limitation.