TMI Blog2023 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... T SHAMPA DUTT (PAUL), J.: 1. The present revision has been preferred against an Order dated 17.12.2019 passed by the learned Additional Sessions Judge, F.T.C.-2, City Sessions Court, Bichar Bhawan at Kolkata in Criminal Appeal No. 124 of 2018, arising out of Complaint case no. 26691 of 2011 under Sections 138/141 of the Negotiable Instruments Act, 1881, as amended thereunder thereby dismissing the said Criminal Appeal on contest and affirming the Order dated 04.01.2018 passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in connection with Complaint Case No. 26691 of 2014 under Section 138 of the Negotiable Instruments Act and Judgment and Order dated 04.01.2018 passed in complaint case no. 26691 of 2011 under Sections 138/141 of the Negotiable Instruments Act, 1881 by the learned Metropolitan Magistrate, 17th Court at Calcutta. 2. The petitioner's case is that the petitioner no. 1 is a partnership firm having its office at P-27, Princep Street, Police Station-Hare Street, Kolkata-700 072, duly represented by its partners namely Mr. Niaz Ahjmed and Mrs. Indrani Chakraborty, being the petitioner no. 2 and 3 herein. 3. The petitioners were place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside. 12. The learned trial court while passing the impugned order dated 17.12.2019 failed to consider the definition of 'Month' in the General Clauses Act and thus the impugned order is liable to be set aside. 13. The judgment is otherwise bad in law and liable to be quashed and/or set aside. 14. A written notes of argument has been filed by the petitioners wherein it has been stated that the complainant was engaged to deal with all direct and indirect taxes, he admitted that he did not file any documents to the show that he was present before the Joint Commissioner Dharmatala Circle. That he did not appear on most of the days particularly on 03.05.2014 before the Joint Commissioner Dharmatala Circle. The accused issued the cheque to the complainant but he did not appear on dates and ex-parte order was passed against her. She further deposed that she paid cash of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant against cheque, money receipt of Rs. 10,000/-(Rupees Ten thousand) only dated 27.06.2011 is marked as Exhibit-'A'. 15. She further deposed that the complainant used to look after works related to tax but did not appear in the tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computation of the date shall be excluding the day of the receipt but in the proceeding under Section 138 of the Negotiable Instruments Act, 1881 the expression is within 15 days of the receipt of the Notice and hence for the purpose of computation the date shall be including the date of the receipt of the notice. 22. The following judgments have been relied upon by the petitioners:- i. Sadanandan Bhadran vs Madhavan Sunil Kumar, (1998) 6 SCC 514. ii. AIR 1999 SC 1090. iii. Sil Import, USA vs Exim Aids Silk Exporters, Bangalore, (1999) 4 SCC 567. iv. Suman Sethi vs Ajay K. Churiwal and Anr., (2000) 2 SCC 380. v. Uniplas India Ltd. and Ors. vs State (Govt. of NCT of Delhi) and Anr., (2001) 6 SCC 8. vi. Srikanth P. Hutagee v. Gangahdar S. Hutagekar, (2005) 1 BANKJ 115. vii. Subodh S. Salaskar v. Jayprakash M. Shah and Anr., AIR 2008 SC 3086. viii. Sivakumar vs Natarajan, (2009) 13 SCC 623. ix. ECON Antri Ltd. v. ROM Industries Ltd. and Anr., 2013 Cri. L. J. 4195. x. Peddireddy Sanjeeva Reddy v. State of A.P. Anr., 2015 ACD 62 (HYD). xi. Abdul Jakir v. State of U.P., AIRONLINE 2020 ALL 1628. 23. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, which occurred after more than eight years. This infallibility regarding coverage of actual period of limitation did not appear to have struck anybody. Hence, there was no delay in filing the complaint as alleged by the accused petitioners. 28. Hence applying the principle cited hereabove, it can be very well submitted that there was no delay in filing the present complaint case. 29. It is further submitted that the monotonous plea of issuing cheques as security and not for the reason of discharging legal liability, has been clearly discarded by the trial court by considering the same as Point No.3 of the judgment and indicated its worthlessness in view of the fact that the cheques-in-question were issued upon a settlement arrived between the parties regarding balance/final payment of professional fees of the complainant (Exhibit No. 11, page no.5 of the judgment). The learned Judge has laboriously explained about legally enforceable liability in his judgment. That apart oral evidence of DW-2 as recorded in this regard clearly indicated their malafide. 30. Mr. Lahiri has relied upon the following judgment:- (a) M/s. Saketh India Ltd. vs M/s. India Securities Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the Court to take cognizance of offence even after expiry of the period of limitation [See MSR Leathers Vs. S. Palaniappan (2013) 1 SCC 177]. Only with a view to obviate the difficulties on the part of the Complainant, Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the Court to condone the delay [See Subodh S. Salaskar Vs. Jayprakash M. Shah (2008) 13 SCC 689]. 21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The complaint is thus not barred by limitation. 35. Regarding point no. (ii) and (iii). Admittedly, there was a dispute regarding payment of professional fees. 36. The petitioner's case is that as the complainant did not discharge his duty, he was not entitled to any fees. It is further stated by the petitioner that Rs. 10,000/- has been paid to complainant towards his fees. 37. In Sunil Todi Ors. vs The State of Gujarat Anr., Criminal Appeal No. 1446 of 2021, on 3 December, 2021 , the Supreme Court held:- 25. The explanation to Section 138 of the NI Act provides that debt or any other liability means a legally enforceable debt or other liability. The proviso to Section 138 stipulates that the cheque must be presented to the bank within a period of six months from the date on which it is drawn or within its period of validity. Therefore, a cheque given as a gift and not for the satisfaction of a debt or other liability, would not attract the penal consequences of the provision in the event of its being returned for insufficiency of funds. Aiyar s Judicial Dictionary defines debt as follows: Debt is a pecuniary liability. A sum payable or recoverab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly professional fees was due to the complainant for discharge of his professional duty. The cheque was issued towards that liability of professional fees. 39. The petitioner s further contention is that the cheque was given as security. 40. The Supreme Court in Sunil Todi Ors. vs The State of Gujarat Anr., (Supra) further held:- 22. In a more recent judgment of a two judge Bench in Sripati Singh v. State of Jharkhand 2021 SCC OnLine SC 1002, an order of the Magistrate taking cognizance and issuing summons on a complaint under Section 420 IPC and Section 138 of the NI Act was challenged before the High Court. There was a transaction between the second respondent and the complainant pursuant to which the appellant had advanced sums of money. Several cheques were handed over but they were dishonored on presentation. The High Court allowed the petitions. An appeal was filed before this Court. Before this Court, the appellant urged that a cheque issued towards discharge of the loan and presented for recovery could not be construed as a security for the transaction. In appeal, this Court noted that there were four loan agreements under which the second respondent ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an on demand promissory note and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as security the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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