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TMI Blog2022 (9) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Court acquitted the respondent from the charge levelled against him. The appeal has been filed on the ground that the notice of intimation of the dishonoured cheque was admittedly received by the appellant/complainant on 29.01.1997. The notice under Section 138 N.I. Act was issued on 11.02.1992 and received by the respondents/accused on 12.02.1997. The period within which the respondent should have paid the amount of the dishonoured cheque i.e. within 15 days of receipt of the notice which is 27.02.1997 (though this Court finds that the date should be 28.02.1997) as the date of intimation of the dishonoured cheque is to be excluded from the period of 15 days). The appellant submits that the cause of action arose on 28.02.1997 i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exhibit '4' is the cheque bearing number 475603 dated 27.01.1997. Exhibit '6' is the bank's memo dated 29.01.1997 by which the dishonour of the cheque was intimated. Exhibit '7' is the demand notice dated 11.02.1997. The complainant was examined prosecution witness no. 1 as (PW-1) and submits that Exhibit '4' was admittedly issued by the accused person in discharge of his liability and it shall be presumed so unless the contrary is proved. Prosecution witness no. 2 and prosecution witness no. 3 are bankers who have corroborated the case of the petitioner and the complainant in respect of the dishonor of the cheque. Section 138 of the N.I. Act, 1881 is quoted hereinbelow:- "138. Dishonour of cheque for insufficiency, etc., of funds in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability." The learned Magistrate held that the notice dated 11.02.1997 was received by the accused on 12.02.1997. Admittedly, the cheque was dishonoured on 29.01.1997 and it is seen that the notice was duly sent within the statutory period under Section 138(b) of the N.I. Act. The complaint was filed on 29.03.1997 (28th March, 1997 was a Holiday being "Good Friday"). The learned Magistrate held that the case was filed within one month from the date of cause of action i.e. 28.02.1997 (though it should be 01.09.1997, 13.02.1997+15 days=2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Sessions Judge, 10th Bench, City Sessions Court in Criminal Appeal No. 62 of 2000 vide judgment dated 30.01.2002, set aside the judgment of conviction and sentence passed by the learned Metropolitan Magistrate, 5th Court, Calcutta dated 30.08.2000. It was held by the learned Sessions Judge that as the notice was received on 12.02.1997, the 15 days expired on 26.02.1997. (Totally erroneous as ever if 12.02.1997 is included it falls on 27.02.1997). It is found that the calculation which starts from here is totally wrong. It is well-settled principle and also held by the Supreme Court in several cases that the date of receipt of intimation is to be excluded i.e. 12.02.1997 is to be clearly excluded from the calculation. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of action arose on 01.09.1997 (February 1997 has 28 days) and thus the compliant had time till 30.09.1997. The complaint has been filed on 29.03.1997. Learned Magistrate rightly held that 28.03.1997 was a holiday on the ground of "Good Friday" and as such the law provides that the next day has to be taken as the date for computation. Accordingly, it is seen that the complaint filed before the Court was within the statutory period as provided under Section 142(b) of the N.I. Act. Conclusion In view of the aforesaid findings, the judgment/order of the learned Sessions Judge, 10th Bench, City Sessions Court, passed on 30.01.2002 is erroneous and is accordingly set aside. This is a case of the year 1997 (more than 25 years) as such the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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