TMI Blog2022 (9) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... and the case was filed on 29.03.1997 i.e. within the statutory period as laid down under Section 138 of the N.I. Act and considering the materials and evidence on record convicted the accused/respondent accordingly. Admittedly, the accused received notice on 12.02.1997. The period of 15 days for making the payment of the amount of dishonoured cheque has to be calculated from 13.02.1997 and ends on 28.02.1997 and cause of action arose on 01.03.1997 (February 1997 has 28 days) and thus the compliant had time till 30.03.1997. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (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. on the next date after 27.02.1997 (12+15=27) and the complaint was filed within one month i.e. 29.03.1997 (though it is seen that the cause of action arose on 01.03.1997) 13.2+15=28.2.97, cause of action rises on 01.03.1997 as (February 1997 had 28 days) 12.02.1997 and 28.02.1997 is to be excluded. It is further case of the appellant/complainant that the learned Sessions Judge came to the wrong conclusion that the case should have been filed on/or before 26.03.1997 as there has been an error in calculation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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=28.2.97, 12.02.1997 28.02.1997 are to be excluded. As such cause of action arose on 01.09.1997, as the month of February 1997 had 28 days). Section 142(b) of the N.I. Act, 1881 is quoted hereunder:- 142. Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) ..; (b) such complaint is made within one month of the date on which the cause of action arises under clause. (c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the period from 13.02.1997 shall be counted with 15 days and the date shall be 28.02.1997 so the first date when cause of action arose to file the complaint in this case, was 01.09.1997 (February 1997 has 28 days). The Sessions Judge held that the complaint should have been filed on/or before 26.03.1997 which in view of the error in calculation in the first instance led to all other calculations being wrong. The Sessions Judge while considering the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 interest of justice will be met if the order of sentence dated 30.08.2000 passed by the Ld. Metropolitan Magistrate, 5th Court, Calcutta is modified by setting aside the sentence of imprisonment and the amount of fine be increased. The judgment and order of conviction and sentence dated 30.08.2000 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta is hereby modified to the following extent and affirmed. That the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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