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2005(2) Bankmann 149
ANDHRA PRADESH HIGH COURT
P.S. Narayana, J.
M/s. V.K.T. Corporation — Appellant
versus
V. Narayana Murthy @ V.N. Murthy and another — Respondents
Criminal Appeal No. 994 of 1999
Decided on 8-11-2004
Counsel for the Parties:
For the Appellant:Mr. Ch. Dhanamjaya, Advocate.
For the Respondent No. 1:Mr. C. Praveen Kumar, Advocate.
For the Respondent No. 2: Public Prosecutor.
IMPORTANT POINT
When time for filing a complaint expires on a public holiday, complaint can be filed on next day.
Headnote:Negotiable Instruments Act, 1881—Sections 138, 139—General Clauses Act, 1897—Section 9—Limitation Act, 1963—Dishonour of cheque—Dismissal of complaint as not filed within 30 days—Appeal against acquittal—As time for filing complaint expires on a public holiday, complaint can be presented on next day—Impugned judgment set-aside—Matter remanded back.
Facts of the Case:
A)Present appeal is by the complainant against the dismissal of complaint. The complainant M/s. V.K.T. Corporation, represented by its proprietor filed the complaint alleging that the accused without any authority entered into a lease-agreement with him by taking an advance of Rs. 60,000/- when the complainant demanded for the refund of amount so advanced, a cheque for Rs. 50,000/- was issued which was dishonoured on presentation. After issuing legal notice the complainant filed a complaint which was dismissed.
B)Magistrate, on the principal question recorded a finding in favour of the complainant but dismissed the complaint on the ground that it was not filed within 30 days. A further finding had been recorded that on10-5-1997 and 11-5-1997 being public holidays, on the next day i.e. on 12-5-1997, the complaint was presented which is within time. The Court held that when time to file a complaint expires on public holiday, complaint can be presented on the next day. In view of the several contentions raised by counsel for respondent which were not well considered and also in view of the wrong computations of 30 days period, the finding of the Magistrate that complaint not maintainable, set-aside. Matter remanded back to Magistrate Court.
P.S. Narayana, J.—Heard Sri Challa Dhanamjaya, counsel representing the appellant-complainant and Sri C. Praveen Kumar, counsel representing the respondent-accused.
2. This Criminal appeal is filed, as against the Order of acquittal recorded in C.C. No. 183 of 1997 on the file of the Court of VIII Metropolitan Magistrate, Visakhapatnam, by Judgment dated 13-1-1999.
3. Sri Challa Dhanamjaya, the learned counsel representing the appellant-complainant, would submit that the learned Magistrate on appreciation of the material available on record, while answering the principal question, arrived at a conclusion that there was dishonour of cheque, but, however, while answering the second crucial question, came to the conclusion that the complaint was filed on 12-5-1997, which is beyond the period of 30 days, and hence, the same is not maintainable. Hence, the learned counsel would contend that the principal question was answered in favour of the appellant-complainant in view of the fact that the computation of period of limitation of 30 days is incorrect calculation, the reason is that on 10-5-1997 and 11-5-1997 the Court was closed being public holidays and hence, on the next day of reopening, the complaint was represented, the same was presented within the time as specified by the provisions of the Negotiable Instruments Act, 1881 (hereinafter in short referred to as “the Act” for the purpose of convenience). The learned counsel also would submit that the mode of computation of period of limitation, the date of arising of the cause of action and the applicability of the General Clauses Act, 1897 and Section 9 thereof, had been well discussed in the case of Saketh India India Ltd. and others v. India Securities Ltd.1. Hence, the learned counsel would conclude that in the light of the clear finding recorded by the learned Magistrate on the principal question, the acquittal may have to be set aside and the respondent-accused has to be convicted.
4. Per contra, Sri C. Praveen Kumar, the learned counsel representing the respondent-accused would contend that elaborate submissions were made by the respondent-accused even before the learned Magistrate and, in fact, written arguments also had been submitted, but, however, all the questions which had been raised had not been considered in the proper perspective by the learned Magistrate. The learned counsel also would submit that P.W. 1 admitted that on 20-3-1997 notice was issued by P.W. 1 and the dishonour memo is dated 4-3-1997, the date of cheque is 18-10-1996. In view of the same, it cannot be said that the statutory period had been complied with and valid notice was given in accordance with the provisions of the Act. The learned Counsel also further contend that P.W. 1 is a stranger as far as M/s. V.K.T. Corporation is concerned i.e., complainant and hence, he has no lucus standi at all to present the complaint. There is no authorization or no material had been produced by P.W. 1 to connect himself with the complainant. The learned counsel also would further contend that absolutely there is no material relevant to satisfy the ingredient, legally enforceable debt. The learned counsel also pointed out to the evidence of P.W. 1 and would submit that on the strength of such evidence, who had deposed about the failure on the part of the accused to deliver the possession of the land, which was leased out under the agreement and taking advance of Rs. 60,000/-, and in the absence of any other evidence, it cannot be said that the ingredient of legally enforceable debt had been satisfied.
5. The learned Additional Public Prosecutor Sri Mohd. Osman Shaheed, however, would contend that as far as the power of the appellate Court is concerned, though acquittal had been recorded by the learned Magistrate, the whole evidence may have to be appreciated and both the negative and positive findings can be considered and the appellate Court may independently arrive at a conclusion whether the evidenc
