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TMI Blog2016 (12) TMI 1883X X X X Extracts X X X X X X X X Extracts X X X X ..... n the complainant, now the opposite party before this court averred that on 30/12/1999, an advance of Rs. 2,85,000/- was given to the accused by cash and the accused promised to repay the same within ten days and on the very same day, the accused issued a cheque being No. 23912 in respect of his Account No. 3361 drawn on Allahabad Bank, Dakshin Jhapordah Branch, P.S. Domjur, District-Howrah covering an amount of Rs. 2,85,000/-. 2. The present petitioner before this court-the accused convict while issuing cheque on 30/12/1999 requested the opposite party/complainant not to present the cheque for encashment at leased for ten days from the date of issue of the cheque. The complainant waited for twelve days and then deposited the cheque on 13/01/2000 in his account being S.B. A/c No. 17421 in the United Bank of India, Domjur Branch but the cheque was dishonoured on 17/01/2004 as per the bank memo for 'insufficiency of fund' and the complainant received the returned memo from his banker on 20/01/2000. Thereafter, the complainant issued the notice as contemplated under the said Act but even though the notice was received, it was not replied. In paragraph 6 of the complaint, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses (a), (b) and (c) to the proviso thereof indicate that a cheque has to be presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier. Clause (b) indicates that the payee or the holder in; due course of the cheque, has to make demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and Clause (c) provides that if the drawer of the cheque fails to make the payment of the said amount of money to the payee or to the holder in due course of the cheque within 15 days of receipt of the said notice, the payee or the holder of the cheque may file a complaint under Section 142 of the Act in the manner prescribed." 9. He also cited a decision of this Hon'ble Court in the case of Annapurna Cast Limited Vs. Akshaya Technologies Pvt. Ltd. & Ors., reported in (2016) 4 CAL LT 428 (HC) to convince this Court regarding the period of limitation. 10. Regarding the part payment, Mr. Dutta Gupta has cited a Single Bench decision of the Kerala Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it is not to be looked into by the Court as it was the positive case of the defence before the trial court the no such payment was made to this complainant and now he cannot take up a new story that the complainant had no capacity to pay. 18. He also took me to the judgment of the learned Trial Court to say that both DW-1 and DW-2 before the learned Trial Court admitted regarding the issuance of cheque even though in the Section 313 Criminal Procedure Code statement the accused made up a case that no such cheque was issued at all. He further submitted by taking me to the internal page 3 of the judgment that the relationship between the parties is that of a lawyer and client and that such loan was advanced by the complainant client just as accommodation loan for which no licence is required. Regarding part payment he has relied upon a decision of the Bombay High Court in the case of Vishnu Bhat Vs/. Narayan R. Bandekar and Others, reported in 2008 (2) ICC 494 wherein the Single Bench of the Bombay High Court held that once the cheque is dishonoured, the offence is committed and any payment subsequent thereto will not absolve the accused of liability of criminal offence. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court likes to rely upon the decision of the Apex Court as passed in Tameeshwar Vaishnav (Supra) and I have quoted paragraph No. 15 of the said judgment in page No. 4 of this judgment and I do not like to reproduce the same again. 23. Let us now turn to Section 142 of the said Act and as per Clause (b) of that section such complaint may be filed within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the said Act. Thus, the calculation will be that the holder of a cheque will get 30 days' time as per Clause (b) of section 138 on receipt of the information by him form the bank regarding the return of the cheque as unpaid. Thereafter the holder of the cheque will get at least 15 days more time as per Clause (c) of Section 138 of the said Act if the said amount still remained unpaid and as per Section 142(b) of the Act such complaint is to be filed within one month from that 15 days as mentioned in Clause (c) of Section 138. Here in the instant case before this Court the payment of Rs. 1 lakh was made on 11.03.2000 and according to this court it is the starting time of the period of limitation. The complaint was filed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the argument on this point as advanced by Mr. Dutta Gupta is not convincing this court. The argument of Mr. Dutta Gupta that the appellant had no financial capacity to advance in cash Rs. 2,85,000/- cannot be considered as his client cannot question the capacity of the appellant to advance such amount particularly when after receipt of legal notice the opposite party paid Rs. 1 lakh to the appellant. Thus, this issue is answered in favour of the appellant. The decision of Kerala High Court as passed in Shiju K. (supra) as cited by the opposite party is not accepted by this court. 29. Regarding point No. 4: As regards part payment this court has already answered that the decision of Shiju K. (supra) is not convincing to this court and while answering point No. 1 this court has already answered the issue that part payment cannot defeat the entire cause of action. Thus, this point is answered in favour of the appellant. 30. Regarding point No. 5: It is true that as per Section 29 of the Code of Criminal Procedure, 1993 no Judicial Magistrate of the first class can impose any fine exceeding Rs. 10,000/- but in the instant case before this court the learned Judicial Magistrate impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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