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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Md. Sajiruddin – Petitioner
Versus
The State of West Bengal and Another – Respondents
CRR No. 2499 of 2019
Decided On : 02-08-2023
NEGOTIABLE INSTRUMENTS ACT - SECTION 138 - APPLICABILITY - LIMITATION - CALCULATION - DEMAND NOTICE - SERVICE - PRESUMPTION - CONDONATION OF DELAY - JURISDICTION OF COURT.
Fact of the Case:
The petitioner was accused of issuing two post-dated cheques that bounced due to insufficient funds. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, beyond the period of limitation. The petitioner filed a discharge petition, which was rejected by the trial court. On appeal, the appellate court upheld the trial court's order.
Finding of the Court:
The High Court held that the complaint was barred by limitation. The court observed that the demand notice was issued on 3.1.2013 and received on 7.1.2013, which was allegedly not within the knowledge of the complainant. However, the service is deemed to be made/effected within 30 days of sending it. In this case, the period of 30 days from 3.1.2013 would end on 2nd February, 2013. 03.01.2013 being excluded. The payment within 15 days would commence on 3rd February, 2013 and end on 18.02.2013. Thirty days thereafter would end on 20th March, 2013. From 19.02.2013 to 28.02.2013 (10 days) and March 20 days. The present complaint was filed on 26.03.2013. There is clearly a delay of 5 days even if the complainant is given the benefit as prescribed.
Issues: 1. Whether the complaint was barred by limitation? 2. Whether the court had jurisdiction to take cognizance of the complaint beyond the period of limitation?
Ratio Decidendi: 1. The court held that the complaint was barred by limitation. The court observed that the demand notice was issued on 3.1.2013 and received on 7.1.2013, which was allegedly not within the knowledge of the complainant. However, the service is deemed to be made/effected within 30 days of sending it. In this case, the period of 30 days from 3.1.2013 would end on 2nd February, 2013. 03.01.2013 being excluded. The payment within 15 days would commence on 3rd February, 2013 and end on 18.02.2013. Thirty days thereafter would end on 20th March, 2013. From 19.02.2013 to 28.02.2013 (10 days) and March 20 days. The present complaint was filed on 26.03.2013. There is clearly a delay of 5 days even if the complainant is given the benefit as prescribed. 2. The court held that the court did not have jurisdiction to take cognizance of the complaint beyond the period of limitation. The court observed that Section 142(b) of the Negotiable Instruments Act, 1881 provides that a complaint under Section 138 of the Act must be made within one month of the date on which the cause of action arises. In this case, the cause of action arose on 7.1.2013, when the demand notice was received by the petitioner. The complaint was filed on 26.03.2013, which was beyond the period of limitation. The court further observed that the complainant did not file an application for condonation of delay. Therefore, the court did not have jurisdiction to take cognizance of the complaint.
Final Decision: The High Court allowed the revisional application and set aside the order of the appellate court, the order of the trial court, and the order of the magistrate taking cognizance of the complaint. The court directed the complainant to file an application for condonation of delay within one month from the date of the order. The court also directed the magistrate to hear and dispose of the application for condonation of delay within one month thereafter on hearing both sides.
JUDGMENT :
SHAMPA DUTT (PAUL), J.
1. The present revision has been preferred praying for quashing of the proceeding of complaint case No. 177C/2013 under Section 138 of the Negotiable Instruments Act, pending before the learned Judicial Magistrate, 1st Court, Malda and setting aside of the order dated 29.06.2019 passed by the learned Additional Sessions Judge, 5th Court, Malda in Criminal Revision No. 12 of 2018, thereby dismissing the revisional application filed by the petitioner and affirming the order dated 05.01.2018 passed by the learned Judicial Magistrate, 1st Court, Malda in complaint case No. 177C of 2013 and Order dated 05.01.2018 passed by the learned Judicial Magistrate, 1st Court, Malda in complaint case No. 177C of 2013, rejecting thereby the prayer of the petitioner for discharge from the instant case.
2. The petitioner’s case is that the petitioner is a teacher of Osmania High Madrasah and is an accused in the present complaint case no. 177C/2013, under Section 138 of the Negotiable Instruments Act, pending before the learned Judicial Magistrate, 1st Court, Malda.
3. On 26.03.2013, a petition of complaint was filed by the opposite party no. 2 before the court of the learned Chief Judicial Magistrate, Malda, alleging commission of an offence by the petitioner punishable under Section 138 of the Negotiable Instruments Act. The said case was registered as Complaint Case No. 177C/2013.
4. The allegation leveled in the said complaint are to the effect that:
(b) That the opposite party no. 2 presented the two cheques for encashment on 07.12.2012. On 08.12.2012, the said two cheques were returned by the Branch Manager, State Bank of India, Rathbari Branch, Malda by two separate cheques return memos with the remarks “Insufficient Fund.” The opposite party no. 2 received the cheque Memos through I.D.B.I., Malda Branch.
(c) On 03.01.2013, a demand notice under Section 138 of the Negotiable Instruments Act was issued to the opposite party no. 2 through his learned Advocate, Nilanjan Sarkar under registered post with acknowledgment due and the said notice has been sent to the correct address of the petitioner.
(d) On 18.02.2013, the learned advocate of the opposite party no. 2, sent a letter to the Superintendent of Post Office, Malda Head Post Office as he had not received the Acknowledgment Due Card, duly received by the petitioner. In the said letter, the learned advocate requested the postal authority regarding confirmation of delivery of the said notice.
(e) The Sub Post Master, Malda Court Post Office, Malda by his letter dated 05.03.2013 informed the learned advocate of the petitioner that the above noted registered notice has been delivered to the petitioner on 07.01.2013. In spite of receiving the demand notice on 07.01.2013, the petitioner failed to make payment of the sum of Rs.2,30,000/- within the statutory period of 15 days from the receipt of notice.
(f) The accused/petitioner has thus committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (as amended till date).
5. The learned Chief Judicial Magistrate, Malda, upon receipt of the said complaint, was pleased by his order dated 02.04.2013 to take cognizance of the offence.
6. The petitioner was examined under Section 251 of the Code of
AI
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