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2003 DIGILAW 522 (CAL)

SHRI NARESH BUTANI v. ROSLIE TRIPATHI

2003-10-29

P.K.BISWAS

body2003
P. K. BISWAS, J. ( 1 ) LEARNED Advocate, appearing for the petitioner is present. None, however, appears on behalf of the opposite party even on repeated calls. ( 2 ) THE instant application has been filed by the petitioner praying for quashing of the proceeding and/or setting aside the order dated 17th february, 2003 passed by the learned Chief Judicial Magistrate, Alipore in complaint Case No. C/4210 whereby the learned Court was pleased to reject the application of the accused No; 2, petitioner herein, who come up before the aforesaid Court with plea that the said case is hit by law of limitation as the case was not instituted within the period of limitation, as envisaged in Section 138 as also 142 of the N. I. Act. ( 3 ) HEARING the learned Advocate for the petitioner and perusing the impugned order itself, it is quite clear that the notice was served upon the present petitioner on 20. 3. 1998 and the instant case was filed on 9. 12. 1998 that is long after the statutory period of 45 days. ( 4 ) FROM the impugned order itself, it appears that the learned Court below placing his reliance upon the decision reported in CHN 1993 at page 82 has rejected the application filed by the petitioner. But in view of the judgment of the Apex Court reported in (1994) 4 Supreme Court Cases 567 in Sil Import, USA v. Exim Aides Silk Exporters, Bangalore, and reported in 2001 CHN at Page 235 in the case of Darshan Singh v. State of West bengal and Ors. and antoher decision reported in 2002 Calcutta Criminal law Reported at page 861 in the case of Sri Moinuddin Munshi v. Sri abhijit Pal and Anr. I am rather promted to accept the contention of the accused petitioner holding that the case is wholly barred by limitation and that being the position, the impugned order passed by the Chief Judicial magistrate, Alipore stands set aside. ( 5 ) IN consequance thereof, the proceedings being complaint Case no. C/4210 of 98 now pending before the Court of the learned Chief Judicial magistrate stands quashed. Urgent xerox certified copy of this order be given to the learned Counsel for the parties, if applied for.