TMI Blog2022 (4) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 1-4-2022 - HON BLE MR. JUSTICE T. AMARNATH GOUD For Petitioner(s) : Mr. P. K. Pal Advocate. Mr. S. Datta, Advocate. For Respondent(s) : Mr. S. Deb, Sr. Advocate. Mr. B. Debnath, Advocate. Mr. S. Debnath, Addl. P.P. JUDGMENT ORDER Heard Mr. P.K. Pal, learned counsel appearing for the petitioner. Also heard Mr. S. Deb, learned senior counsel assisted by Mr. B. Debnath, learned counsel appearing for the respondent No.1 and Mr. S. Debnath, learned Additional Public Prosecutor, appearing for the respondent-State. [2] By means of filing this revision petition under Sectin-401 read with Section-397 and 482 of the Code of Criminal Procedure, 1973 for setting aside the judgment dated 01.03.2021 passed by the learned Sessions Judge, South Tripura, Belonia in Criminal Appeal No.15 of 2019 upholding the judgment and order dated 18.06.2019 in N.I. 13 of 2016 passed by the learned Chief Judicial Magistrate, South Tripura, Belonia awarding sentence to convict petitioner Sri Rakhal Mallik to suffer S.I. for 1(one) year and pay a fine of ₹ 22,00,000/- in default to suffer SI for 6(six) months. [3] The petitioner before this Court is a defaulter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint petition on 27th August, 2016 before the learned Chief Judicial Magistrate, Belonia, South Tripura against the accused-petitioner. The learned trial Court has taken cognizance of the offence against the accused-petitioner under Section-251 of Cr. P.C. being satisfied with the case records and being accused pleaded not guilty of the offence and claimed to be tried. [6] During trial the complainant Sri Umesh Majumder examined himself as PW-1 and also examined two more witnesses namely Sri Sujit Das as PW-2 and Sri Khokan Ch. Bhowmik as PW-3. The convict-petitioner was examined under Sec. 313 of Cr.P.C., at which he denied the incriminating materials and also denied to adduce defence witness. Learned Chief Judicial Magistrate, South Tripura, Belonia after evaluating the evidence, convicted the petitioner for the offence under Sec. 138 of N.I. Act as indicated above. [7] After hearing the parties and perusal of the evidence on record and the observation made by the learned Chief Judicial Magistrate, the learned Sessions Court has observed as under: So, in the totality of the evidence and materials available on record I find no impropriety in the judgment of learned tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of the offence under Section-200 of the Cr. P.C. on the complaint taken by the learned Trial Court hits by the prescribed period of limitation and most illegally issued notice by the court below. [12] He has further contended that the 3rd ingredient of the offence is that the cheque must be presented to the bank within a period of six months from the date mentioned on it. But, the Exbt.A (Cheque No.623748) clearly indicates that the cheque was issued on 15.04.2016 and by prescription valid for three months only. Therefore, expires the validity of the cheque on 14.07.2016. Moreover, the cause of action arose in the case receipt of the statutory notice dated 13.07.2016 duly received by the accused petitioner on 27.07.2016 as it is revealed from Indian Posts tracking report. Therefore, no cause of action arose on the date of filing the complaint petition on the part of complainant on 27th August, 2016 before the court of learned CJM. [13] The learned Court below ought to have considered the fact that the complainant (PW-1) during cross examination on the question of liabilities of the accused, the complainant deposed that the accused was indebted me for the alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to statement made in the written complaint, the probability give rise to the fact that the accused never issued the cheque for an amount of ₹ 11,00,000/- as against any enforceable debts and liability. Mr. Pal, learned counsel has submitted that admittedly there was no document showing legal entrancement by the accused upon him to perform the construction works was produced to prove the enforceable liability. [17] He has relied upon a decision of the Apex Court in Subodh S. Salaskar v. Jayprakash M. Shah and Another, reported in (2008) 13 SCC 689, wherein the Apex Court has observed inter alia: 14. A complaint petition alleging commission of an offence under Section 138 of the Act must demonstrate that the following ingredients exist, i.e.: (a) A cheque was issued; (b) The same was presented; (c) But, it was dishonoured; (d) A notice in terms of the said provision was served on the person sought to be made liable; and (e) Despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice. [18] In the light of the above submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Branch for clearance as exhibit-2, letter of intimation dated 13.06.2016 issued by SBI, Belonia Branch along with return memo dated 07.06.2016 issued by UBI, Belonia Branch as exhibit-3 (series), copy of legal notice dated 11.07.2016 as Exhibit-4 and postal receipt dated 11.07.2016 along with on-line tracking record of the same as Exhibit-5 (series). [21] During cross-examination PW-1, the complainant admitted that he got the cheque from the accused-petitioner on 15.04.2016 and he deposited the said cheque to the bank on 03.06.2016 and he had no knowledge about the position of fund lying in the account of the accused-petitioner. He also admitted that the accused was indebted to him for the alleged amount as he had performed some Government construction works on his behalf and also admitted that he has not submitted any document before the Court to show any legal entrustment by the accused-petitioner upon him to perform the construction work. However, he denied the suggestion that before deposition of the cheque, the accused-petitioner requested him to submit the cheque after some time. [22] PW-2, Sri Sujit Das in his examination-in-chief has stated that he worked as a maso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged amount, as the complainant had performed some Government construction works on his behalf. Exhibit-1, the cheque was issued on 15.04.2016 and the complainant presented the said cheque to the bank on 03.06.2016 vide Exhibit-2 and it was returned with Return Memo expressing fund insufficient vide exhibit-3 (series). So, it is clear that the cheque was presented for payment within the statutory period of 6 (six) months. The cheque was returned unpaid for the reason funds insufficient . The original Return Memo vide exhibit-3 (series) placed on record, present dishonour of cheque while presumption raised u/s 146 of the Act and during the trial exhibit-3 (series) went un-controverter. [26] The complainant received intimation of dishonour of the cheque on 13.06.2016 by the SBI, Belonia and he sent Legal Notice dated 11.07.2016 and it was duly served upon the petitioner also remain uncontroverted. It is also evident that the petitioner did not make the payment of the cheque amount within 15 days of the receipt of the Legal Notice for which the complainant has filed the case. So, it is proved that the cheque is presented against a legally recoverable liability in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of the demand notice was 13.07.2016 and accordingly the 30 days limitation is 30.07.2016 and the limitation of 15 days will be 28th July, 2016. The private complaint ought to have been instituted by 26.07.2016 i.e. 30 days. But the complaint has been filed on 27.08.2016 with one day delay and hence, the same is not maintainable and prayed to set aside the judgment and allow the present petition. [32] Learned counsel appearing for the respondent, the complainant contended that 15 days has to be calculated from day one after the receipt of the demand notice i.e. 13.07.2016 i.e. the date of receipt and the limitation of 15 days start from 14.07.2016 as day one and ends on 29.07.2016. The 30 days of filing the complaint will be computed as from the day one and the limitation 30 days would come to end vide 29th August 2016. The complaint has been filed on 28.08.2016. Hence, there is no delay and it is well within the time scheduled as per Section-138 of the NI Act and prayed to dismiss the present petition. [33] For the purpose of deciding this case, it is relevant to extract the legal provisions involved which are as under: 138. Dishonour of cheque for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentment for the reasons stated in that section.] Section-142. Cognizance of offences -(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; .....Emphasis Added. (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 2[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;] (c)....... Section-138: dishonour of cheque for insufficiency, etc., of funds in the account- where any cheque drawn...........or with both. Provided that nothing contained in this section shall apply unless: (a)............... (b)................ (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a look at the English cases which have been referred to in the passage quoted therein from Haru Das Gupta. 21. The third case referred to is Marren v. Dawson Bentley Co. Ltd.[18]. In that case on 8/11/1954 an accident occurred whereby the plaintiff was injured in the course of his employment with the defendants. On 8/11/1957, he issued a writ claiming damages for the injuries which he alleged were caused by the defendants negligence. The defendants pleaded, inter alia, that the plaintiff s cause of action, if any, accrued on 8/11/1954 and the proceedings had not been commenced within the period of three years thereof contrary to Section 2(1) of the Limitation Act, 1939. It was held that the day of the accident was to be excluded from the computation of the period within which the action should be brought and, therefore, the defendants plea must fail. While coming to this conclusion reliance was placed on passages from Halsbury s laws of England[19]. It is necessary to quote those passages: 207. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as from such a day or until such a day are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day. [35] In case of Saketh India Ltd. and Others v. India Securities Ltd, reported in (1999) 3 SCC 1, the Apex Court has observed thus: 3. In the present case, cheques dated 15th and 16th March, 1995 issued by the petitioners bounced when presented for encashment as per the bank endorsement. Notices were served on the accused on 29th September, 1995. As per section 138 (c) accused were required to make payment of the said amount of money within 15 days. The accused failed to pay the said amount, hence the cause of action for filing the complaint arose from 15th October, 1995. Complaints were filed on 15th Novem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r seeking contribution by the party injured by the tort or an award is made in an arbitration, or, alternatively, payment in compensation for the damage has been made or agreed to be made. The cause of action of one demanding indemnification runs from the date of judicial ascertainment of that person s own liability to another. In certain circumstances a cause of action may be complete so that time begins to run, even though the action itself cannot be brought because of some reason not part of the cause of action. Where there has once been a complete cause of action arising out of contract or tort, time begins to run, and subsequent circumstances which, but for the prior wrongful act of default, would have constituted a cause of action disregarded. A cause of action in respect of a breach of the duty to build dwellings properly is deemed to have accrued at the time when the dwelling was completed, but if after that time a person who has done work for or in connection with the provision of the dwelling does further work to rectify the work he has already done, any cause of action in respect of that further work is deemed to have accrued at the time when the further ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
