The determination of the date of receipt of notice and the commencement of the statutory period for filing a complaint under Section 138 of the NI Act.

JUDGMENT

Bibek Chaudhuri, J. - Order dated 22nd August, 2005 passed by the learned Additional Sessions Judge, 3rd Court at Darjeeling in Criminal Appeal No.2 of 2001, thereby dismissing the appeal filed on behalf of the petitioner and affirming the judgment and order dated 30th July, 2001 passed by the ld. Chief Judicial Magistrate, Darjeeling in C.R Case No.36 of 1999 is under challenge in the instant revision.

2. It is pertinent to mention at the outset that the opposite party no.2 filed a court complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act against the present petitioner which was registered as C.R Case No.36 of 1999. The said case was disposed of by a judgment and order dated 30th July, 2001 thereby convicting the petitioner of the charge under Section 138 of the Negotiable Instruments Act and sentencing him to suffer rigorous imprisonment for six months and to pay fine of Rs.8,34,526/-, in default to suffer further imprisonment for two months.

3. The case of the complainant/opposite party No.2 was as follows:-

4. The petitioner had approached the opposite party No.2 for a loan amounting to Rs. 2.5 lakhs to meet the financial hardship. The opposite party No.2 duly forwarded the said loan on 28th November, 1996. After obtaining the said loan, the petitioner failed to make re-payment of the loan amount within the reasonable period of time. Subsequently on 8th November, 1998 the parties had entered into an agreement in writing in presence of the witnesses, therein agreeing to pay the loan amount together with interest amounting to Rs.4,17,263/- and issued a post dated cheque in favour of United Corporation being Cheque No. 0064465 dated 5th April, 1999 drawn on Union Bank of India. The opposite party No.2 deposited the said cheque on 6th April, 1999 for encashment but it was returned dishonored with the remark 'Exceeds arrangement'. The banker of the opposite party No.2 informed regarding dishonour of the said cheque to the opposite party No.2 on 9th April, 1999. Thereafter the opposite party No.2 sent a notice through his learned Advocate calling upon the petitioner to make payment of the said amount with threat of legal consequence under registered post with acknowledgement due. Since the A/D card was not returned for long, the opposite party No.2 wrote a letter to the Postmaster of Darjeeing Post Office on 11th May, 1999 and in reply thereto the Postmaster informed the ld. Advocate for the opposite party No.2 that the addressee of the said registered letter was found absent from his residence and as such, the said letter was kept in deposit for seven days in the Post Office for collection by the addressee. Subsequently the complainant/opposite party No.2 filed a complaint under Section 138 of the NI Act in the court of the ld. Chief Judicial Magistrate at Darjeeling.

5. The petitioner was convicted on trial for an offence punishable under Section 138 of the NI Act and the ld. Magistrate sentenced him to suffer imprisonment for six months and to pay a fine of Rs.8,34,526/- in default to suffer further imprisonment for two months.

6. Being aggrieved, the petitioner preferred an appeal before the ld. Sessions Judge, Darjeeling assailing the judgment and order of conviction passed by the ld. Chief Judicial Magistrate at Darjeeling. The said appeal was registered as Criminal Appeal No.2 of 2001. The said appeal came up for hearing before the ld. Additional Sessions Judge, 3rd Court at Darjeeling when the ld. Judge by his judgment and order dated 22nd August, 2005 dismissed the criminal appeal and affirmed the judgment and order of conviction of sentence dated 30th July, 2001 passed by the ld. Chief Judicial Magistrate at Darjeeling.

7. It is contended on behalf of the petitioner that both the courts below failed to appreciate that there had been no service of notice as envisaged under Section 138(b) of the NI Act and therefore complaint under Section 138 of the NI Act was bad for want of n