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2012 DIGILAW 773 (GAU)

Ranjit Kumar Sarma @ Ranjit Sarma v. Eusuf Ali

2012-06-21

B.D.AGARWAL

body2012
JUDGMENT B.D. Agarwal, J. 1. This revision application is directed against the judgment dated 21.9.2006 in Criminal Appeal No. 97 of 2005, whereby the learned Sessions Judge has affirmed the judgment dated 12.8.2005 passed by the learned SDJM, No. 2 in C.R. Case No. 5082 of 2003, whereby the petitioner has been convicted under Section 138 of the NI Act. By this impugned judgment, the petitioner has been sentenced to undergo simple imprisonment for 6(six) months and to pay fine of Rs. 20 lakhs. Heard Mr. B.C. Das, leaned senior counsel assisted by Mr. J.H. Saikia, learned counsel for the petitioners. Also heard Mr. T.H. Hazarika, learned counsel for the respondents. Also perused the impugned judgments. 2. The gist of the case is that the complainant/respondent is one of the office bearers of All Assam GP. Level Samabai Samity Employees Association. He lent a sum of Rs. 15 lakhs to the accused as loan. The said money was returned by the accused by issuing a cheque on 25.6.2003. The cheque was deposited in the bank, which was dishonoured on the ground of insufficiency of fund. Thereafter, statutory notice was given to the petitioner and when he failed to refund the loan amount, a case under Section 138 of the N.I. Act was filed. 3. The case was registered as Complaint Case No. 5028 of 2003. It was allowed by the learned SDJM, which was also affirmed by the learned Sessions Judge. Being aggrieved with the concurrent judgments, the accused has preferred this revision petition. 4. During the course of hearing, Mr. Das tried to assail the impugned judgments on the ground that the complaint was lodged after the statutory period and as such, the same was not maintainable. Mr. Das further submitted that the complainant also tailed to prove that the statutory notice was duly served upon the accused. 5. With regard to the question of delay in lodging the complaint, it appears from the record that cheque was dishonoured by the bank on 21.10.2003. Thereafter, legal notice was issued to the accused on 27.10.2003. The notice was sent by Registered Post with acknowledgment due. The notice was served upon the accused on 29.10.2003. 6. Under proviso (c) to Section 138 of the NI Act, 1881, 15 days' time is to be given to the drawer of the cheque to make the payment. Thereafter, legal notice was issued to the accused on 27.10.2003. The notice was sent by Registered Post with acknowledgment due. The notice was served upon the accused on 29.10.2003. 6. Under proviso (c) to Section 138 of the NI Act, 1881, 15 days' time is to be given to the drawer of the cheque to make the payment. If the payment is not paid then the drawee can file the complaint within next one month under Section 142(b) of the Act. 7. In view of the aforesaid statutory period, the cause of action arose on 13.11.2003 and in view of Section 142 of the Act, the complaint could have been filed within next one month expiring on 13.12.2003. 8. In the case of M/S Saketh India Ltd. & Ors. Vs. M/S India Securities Ltd: 1999 Cri LJ 1882 (1), it has been held that while computing the limitation period, the general rule is to exclude the first day and include the last day. 9. In view of the above legal position, the complaint could have been filed on or before 14.12.2003. Even if it is presumed that the complaint ought to have been filed before 13.12.2003, it was within time, because 13 th and 14th of December were gazetted holidays being 2nd Saturday and Sunday. 10. With regard to service of notice, the learned Courts below have held that the notice was duly served. In the case of D. Vinod Shivappa Vs. Nanda Belliappa: AIR 2006 SC 2179 , the Hon'ble Supreme Court has held that as to when the fact of service of notice can be accepted would depend upon the fact of its case. Similarly, in the case of V. Raja Kumar Vs. P. Subbarama Naidu : 2005 Cri LJ 127, the Apex Court has held that the payee has a statutory obligation to give notice. Once a written notice is despatched, his part is over. If the drawer of the cheque disputes service of notice, burden shifts upon him to prove that it was not really served. 11. In the case before me, there is no dispute that a notice was sent by registered post which was correctly addressed. A/D card was also returned with a signature thereon. However, the complainant (PW-1) has admitted in the cross-examination that the signature given in the A/D card did not tally with the signature given in the cheque. 11. In the case before me, there is no dispute that a notice was sent by registered post which was correctly addressed. A/D card was also returned with a signature thereon. However, the complainant (PW-1) has admitted in the cross-examination that the signature given in the A/D card did not tally with the signature given in the cheque. In my considered opinion, there is no requirement of law that the signature given in the A/D card should tally with the signature of the drawer, given in the cheque. Even otherwise, service of notice by registered post can be presumed with the aid of Section 27 of the General Clause Act, since it was sent to the accused without any deficiency or defect in the address. 12. With regard to the quantum of sentence, the learned SDJM has imposed fine of Rs. 20 lakhs with interest @ 5 % per annum in addition to jail term of 6 (six) months. In my considered opinion, imposing interest upon the fine amount is not provided under Section 138 of the NI Act. Hence, direction to pay interest on the principal amount of fine is beyond the provision of law. Consequently, this part of the direction is hereby set aside. 13. For the foregoing reasons, I do not find any merit in the revision application. Consequently, the same is hereby dismissed subject to modification in the sentence, as indicated in the preceding paragraph. The petitioner is directed to surrender in the Court of learned SDJM No. 2, Kamrup immediately to serve out the sentence and also to pay the fine amount within 4(four) weeks from today. If the fine amount is not paid, the same shall be realised in accordance with law.