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2016 DIGILAW 138 (CAL)

Kamalesh Samanta v. State of West Bengal

2016-02-05

TAPASH MOOKHERJEE

body2016
JUDGMENT : Neither the petitioner nor his representative was present on the last two days. Today also neither the petitioner nor his representative is present. Learned Advocate for the Opposite Party No. 2/ Mother Dairy Calcutta is present. The case is taken up for hearing in the absence of the Petitioner. The present revisional application is directed against the order dated 15th December, 2010, passed by the court of the Additional Chief Judicial Magistrate at Bidhannagar, North 24 Parganas in Case No. C-296/2010. By the said order the Trial Court rejected the prayer of the present petitioner/accused for dropping the case on the ground of limitation. The case in the Court of the learned Magistrate was a case under Section 138 of the Negotiable Instruments Act, initiated by the present Opposite Party No.2/ complainant. The case of the present Opposite Party No. 2/ complainant in the Trial Court is summarized as follows:- The present Petitioner/Accused and the present Opposite Party No. 2/Complainant had business transactions between them and in discharge of his existing legal and enforceable liabilities the present Petitioner/Accused issued two cheques, one dated 15.03.2010 for Rs. 3,15,200.00 (rupees three lakh fifteen thousand two hundred only) and the other dated 16.03.2010 for Rs. 3,15,397.00 (rupees three lakh fifteen thousand three hundred ninety-seven only) in favour of the present Opposite Party No. 2/ Complainant. Both the cheques were drawn on United Bank of India Paschim Medinipur Branch. The present Opposite Party No. 2/Complainant presented both those cheques on 11.04.2010 for encashment in their Bank and both those cheques were dishonoured due to insufficiency of fund in the account as intimated by the Bank to the present Opposite Party No. 2 / Complainant. After receiving such intimation the present Opposite Party No. 2/ Complainant issued a demand notice dated 26.04.2010 in the correct address of the present Petitioner/Accused and the Postal Acknowledgement Due Card of the said notice reached the office of the present Opposite Party No. 2/ Complainant on 25.05.2010. But as the present Petitioner/Accused did not pay the amounts of the two dishonoured cheques the present Opposite Party No. 2/ Complainant filed a case under Section 138 of the Negotiable Instruments Act against the present Petitioner/ Accused on 28.06.2010. But as the present Petitioner/Accused did not pay the amounts of the two dishonoured cheques the present Opposite Party No. 2/ Complainant filed a case under Section 138 of the Negotiable Instruments Act against the present Petitioner/ Accused on 28.06.2010. The present Petitioner/Accused appeared in the court of the Judicial Magistrate where the aforesaid complaint case was filed and thereafter the present Petitioner/Accused submitted an application before the Court of the Judicial Magistrate on 08.12.2010 alleging that the complaint was filed after the expiry of the limitation period and as such taking cognizance on such time barred complaint was bad in law and the present Petitioner/Accused prayed for his discharge on such ground. After hearing both the parties the learned A.C.J.M. at Bidhannagar rejected such prayer of the present Petitioner/Accused on 15.12.2010 on the ground that the complaint was within the period of limitation computed from the date of the knowledge of the present Opposite Party No. 2/ Complainant regarding the service of notice upon the present Petitioner/Accused. According to the view of the learned A.C.J.M. Bidhannagar the period of limitation should not be computed from the date of receipt of the demand notice by the drawer of the cheques. Being aggrieved by and dissatisfied with such view and order of the Trial Court the present Petitioner/ Accused filed the present revisional application. Mr. Adhya appearing for the present Opposite Party No. 2/ Complainant has submitted that the Trial court has rightly held that the period of limitation should be computed not from the date of actual service of the demand notice upon the drawer of the cheque but from the date of knowledge of the drawee about such service of the notice and hence the order of the learned Trial Court is justified in law. In the case reported in 1999 Supreme Court Case (Cri) 600 (Sil Import, USA – versus – Exim Aides Silk Exporters, Bangalore) it has been clearly laid down by the Hon’ble Apex Court that the date of knowledge of the drawee regarding the date of service of demand notice upon the drawer is not the criteria and while considering the period of limitation the date of actual service of the demand notice upon the drawer of the cheque in question should be always taken into account. In the present case admittedly the present Petitioner/ Accused received the demand notice on 30.04.2010 and the complaint under Section 138 of the N.I. Act was filed on 28.06.2010, i.e., long after expiry of 45 days counted from the date of service of notice upon the Petitioner/ Accused. No explanation for such delay has been offered by the Complainant. So, the decision of the Trial Court on the point is clearly against the decision of the Hon’ble Apex Court mentioned above. It is now settled that cognizance cannot be taken on any time-barred complaint. The complainant’s case, therefore, is not maintainable in law. The present revisional application is, therefore, allowed. The order dated 15.12.2010 passed by the learned A.C.J.M. at Bidhannagar in Complainant Case No. 296/2010 is hereby set aside and the present Petitioner/ Accused is discharged from the case. Let urgent Xerox certified copy of this order, if applied for, be furnished to the petitioner as early as possible.