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2012 DIGILAW 159 (CAL)

In Re: Dipak Maity v. .

2012-02-27

KANCHAN CHAKRABORTY

body2012
JUDGMENT Kanchan Chakraborty, J. 1. Though the matter is appearing in the list under the heading "Application", with the consent of the parties, I propose to dispose of the main revisional application itself along with the connected application treating the same as on day's list. This revisional application has been taken out by Dipak Maity, the accused in C.R. Case No. 50 of 2007, under section 138 of the Negotiable Instruments Act praying for quashing of the proceeding mainly on the ground that the provisions of section 138 of the Negotiable Instruments Act shall not apply in the case because demand notice was not sent within 30 days from the date of receipt of the information from the bank by the payee or holder of the cheque. 2. Mr. De, learned advocate appearing on behalf of the petitioner submits that information from bank regarding dishonour of cheque in question was received by the complainant (payee) on 09.12.2006. The demand notice was issued on 29.01.2007 by him on the accused-petitioner, which is contrary to the proviso (b) to section 138 of the Negotiable Instruments Act. 3. Mr. Chattopadhyay, learned advocate for the opposite party No. 2, submits that the provision to section 142 of the Negotiable Instruments Act empowers the Magistrate to take cognizance of a complaint filed after the prescribed period, upon satisfaction of the Court that there was sufficient cause for not making a complaint within the prescribed period. 4. I have gone through the order passed by the learned Magistrate with rapt attention and constraint to hold that the learned Magistrate was entirely wrong in not taking the issue placed before it. The learned Magistrate did not consider whether the provisions of section 138 of the Negotiable Instruments Act applies when there is a total failure of proviso (b) to section 138 of the Act. On the, contrary, the learned Magistrate taken up the matter in a different way and passed the order dated 11th June 2009, which neither satisfied the petitioner nor the opposite party. 5. On the, contrary, the learned Magistrate taken up the matter in a different way and passed the order dated 11th June 2009, which neither satisfied the petitioner nor the opposite party. 5. For proper appreciation of the matter, the necessary provisions of section 138 of the Negotiable Instruments Act is set out below: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. 6. The section 142 of the Act relates to clause (c) of section 138 of the Act, which is co-related to the period of filing of a complaint within 45 days from the date of failure on the part of the drawer to make payment after receiving of demand notice. In such a case, if delay is caused in filing complaint beyond 45 days, the Court after being satisfied that the complainant had sufficient reasons for not making complaint within such a period, can take cognizance of a complaint. The clause (b) and clause (c) are completely different because clause (b) of section 138 of the Act casts a duty on the payee or holder of the cheque in due course to issue a demand notice within a stipulated period of time. It has got no connection with reckoning the date of filing the complaint in the Court after failure on the part of the drawer to make payment of the cheque amount. That issue was not properly dealt with by the learned Court. It has got no connection with reckoning the date of filing the complaint in the Court after failure on the part of the drawer to make payment of the cheque amount. That issue was not properly dealt with by the learned Court. However, this Court thinks that the Court should take up the matter afresh and answer the issue properly in accordance with law and pass reasoned order. The order impugned dated 11th June, 2009 is set aside. The revisional application is allowed with a direction on the learned Magistrate that it should pass a fresh order on the issue raised by the accused therein in the matter of not sending demand notice by the payee or holder of the cheque in due course within a period of one month from the date of receiving intimation from the bank and consequence thereto as envisaged in clause (b) of section 138 of the Act without being influenced or swayed by any observation made by this Court. 7. In the facts above, this revisional application is disposed of. 8. There will, however, be no order as to costs. 9. Interim order, if any, stands vacated. 10. The learned Magistrate is directed to pass order within a period of one month from the date of communication of the order. 11. In view of disposal of the main revisional application, the connected application, being C.R.A.N. 1292 of 2011, has become infructuous and the same is disposed of accordingly. Let urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties upon compliance of necessary formalities.