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1999 DIGILAW 386 (CAL)

Santipriya Sen v. S. P. Bhattacharyya

1999-07-22

Debiprasad Sengupta

body1999
Judgment Debiprasad Sengupta, J. This revisional application is for quashing of a proceeding being complaint case No. C- 588 of 1996 under section 138 read with section 142 of the Negotiable Instruments Act pending before the learned Judicial Magistrate, 6th Court, Sealdah, South 24-Parganas. 2. On 3.12.96 the opposite party No.1 filed a petition of complaint under section 138/142 of the N.I. Act in the court of learned Additional Chief Judicial Magistrate at Sealdah against the present petitioner and two others. In the petition of compliant it was alleged that the complainant/opposite party No.1 purchased some shares of various companies and later on he intended to sell it. It was alleged that the complainant/O.P. No.1 thereafter was introduced with present petitioner and another person, who agreed to sell those shares in lieu of some remuneration. The complainant thereafter handed over the shares worth Rs.5,47,555/- to M/s. Sourit Sen & Associates (P) Ltd. during the period between October, 1995 to February, 1996. It was alleged that out of the total amount as aforesaid the complainant had already received a sum of Rs.3,49,880/- and after adjustment an amount of Rs.1,97,675/- remained due. The accused persons, it was alleged, issued five cheques in favour of petitioner. But all those cheques, on production for encashment in the Bank, were dishonoured. Thereafter the O.P. No.1 sent a demand notice demanding payment of the amount mentioned in those cheques. The said notice was received by the company on 26.10.96. On faliure to make the payment by the accused persons, the complainant/O.P. No.1 lodged this petition of complaint. 3. Mr. Subir Ganguly, learned Advocate appearing for the petitioner submits that the impugned proceeding is bad in law; because the petition of complaint filed in the court of the learned Magistrate is barred by limitation. Along with the petition of complaint an application under section 5 of the Limitation Act was also filed by the complainant. Mr. Ganguly submits that section 5 of the Limitation Act has got no manner of application in lodging of a complaint under the Negotiable Instruments Act. Mr. Ganguly relies on a judgment reported in 1997 Cr. L.J. 1348, in which it was held by the learned Single Judge of Andhra Pradesh High Court that section 5 of the Limitation Act can not be invoked for condoning delay in filing a complaint under the N.I. Act. Mr. Ganguly relies on a judgment reported in 1997 Cr. L.J. 1348, in which it was held by the learned Single Judge of Andhra Pradesh High Court that section 5 of the Limitation Act can not be invoked for condoning delay in filing a complaint under the N.I. Act. But on going through the records of the case I find that the petition of compliant was very much within time. From the record it appears that the demand notice was received by the Company on 26.10.96. As per provision of the Negotiable Instruments Act the drawer of the cheque is to make the payment within 15 days from the date of receipt of demand notice and on his failure to make such payment the cause of action arises. The petition of complaint is to be filed within one month from the date when cause of action arises. In the instant case notice was received by the drawer on 26.10.96 and his last date of making payment was on 10.11.96. On his failure to make such payment by 10.11.96, the cause of action arose on that date (10.11.96). So, the last date of filing petition of complaint was on 9.12.96, i.e., within one month from the date when the cause of action arose. In the instant case the petition of complaint was filed on 3.12.96, which was within time. 4. Mr. Ganguly further submits that the instant proceeding is liable to be quashed as the demand notice, which forms the basis of prosecution under the N.I. Act, is bad in law. Mr. Ganguly submits that in the demand notice a clear 15 days time is to be given to the drawer of the cheque to make the payment. But in the instant case it will be evident from the demand notice that only 10 days time was given to the drawer to make the payment. According to Mr. Ganguly since the notice is defective and bad in law, the instant proceeding should not be allowed to continue. 5. The learned Advocate further submits that the present petitioner resigned as Director of the Company and on the relevant date when the cheques were issued the petitioner was not at all attached to company and as such he is not liable for prosecution. In my opinion, these are the points which can not be considered at this stage by this court. 6. In my opinion, these are the points which can not be considered at this stage by this court. 6. The learned Advocate appearing for the O.P. No.1 submits that the petition of complaint was not barred by limitation and as such the question of condoning the delay does not arise at all. The learned Counsel further submits that only because in the demand notice 10 days time was given to the drawer of cheque for making payment, the demand notice can not be treated as bad. He relies on a judgment reported in 1999 Cal. Cr. L.R. (Cal) 15, wherein it was held by the Hon'ble Single Judge of this court that proviso (b) to section 138 of the N.I. Act provides that a notice inviting the attention of the drawer of the cheque towards bouncing of the cheque should be served and he should be called upon to make the payment of the amount mentioned in the cheque. If these two conditions are satisfied, the notice can not be said to be bad in law. Asking the petitioner to pay the amount within one week is of no consequence and only for that reason a demand notice can not be treated as bad in law. 7. The learned Advocate of the O.P. No. 1 relies on another judgment reported in 1998 (2) Supreme Court Cases 471, in which it was held by the Hon'ble Apex Court as follows: "It is needless to emphasize that the court taking cognizance of the complaint under section 138 of the Act is required to be satisfied as to whether a prima facie case is made out under the said provision. The drawer of the cheque undoubtedly gets an opportunity under section 139 of the Act to rebut the presumption at the trial. It is for this reason we are of the considered opinion that the complaints of the appellant could not have been dismissed by the High Court at the threshold." 8. I have carefully gone through the petition of complaint and other connected papers and I am of the opinion that there is a prima facie case against the petitioner under sections 138/142 of the N.I. Act. In my opinion, this is not a fit case for quashing of the proceeding at this initial stage. 9. In the result the revisional application fails and the same is dismissed. In my opinion, this is not a fit case for quashing of the proceeding at this initial stage. 9. In the result the revisional application fails and the same is dismissed. Since the proceeding is pending since 1996, I direct the learned Magistrate to conclude the trial of the case with utmost expedition preferably within a period of 3 months from the date of receipt of the Lower Court Records. 10. Let the lower court records be sent down to the court below along with the order of this court immediately. Revisional application fails and dismissed.