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IN THE HIGH COURT OF GAUHATI
C.R. Sarma, J.
Abed Ali – Appellant
Vs.
State of Assam and Ors. – Respondents
Crl. Pet. Nos. 654 and 660 of 2014
Decided On: 19-05-2015
Negotiable Instrument Act, 1881 – Sections 138 and 142(b) - Section 482 - Criminal Procedure Code,1973 - Dishonor of cheque - Petitioner in Criminal Petition who is accused person in Complaint Case and petitioner in Criminal Petition who is accused in Complaint pending before Judicial Magistrate Class invoking jurisdiction of this Court under Section 482 of Code of Criminal Procedure has prayed for quashing said proceedings on ground that complaints filed - It is contention of petitioner that said complaint cases have been filed after expiry of one day of statutory period of limitation and as such said cases being barred by law of limitation are not maintainable in eye of law – Held, Supreme Court and statutory provision as indicated above there is no difficulty in understanding that for purpose of computing period of days date of service or receipt of notice by accused is to be excluded and in calculating period of one month also as prescribed by Section 142(b) of NI Act date which the cause of action arose is to be excluded - It is also clear that meaning of words of and from appearing in Section 138 and 142(b) is to be treated as after - In view of above notices in both cases at hand having been received by accused person on days period is to be calculated excluding day of receipt of notice and in that case days period would expire on - So cause of action for filing complaint arose and not as contended on behalf of petitioner - Petition dismissed
C.R. Sarma, J.
1. Heard Mr. D.C.K. Hazarika, learned counsel appearing for the petitioner. Also heard Mr. B.J. Dutta, learned counsel for the State respondent No. 1 and Mr. M. Choudhury, learned counsel for the private respondent. As these criminal petitions involve same question of law and represented by the same set of counsel, for the sake of convenience and as agreed to by the learned counsel appearing for both the parties, I propose to dispose of these petitions by this common order.
2. The petitioner in Criminal Petition No. 654/2014, who is the accused person in Complaint Case No. 3735c/2013 and the petitioner in Criminal Petition No. 660/2014, who is the accused in Complaint Case No. 3736c/2013 pending before the learned Judicial Magistrate 1st Class, Kamrup, Guwahati invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for short Cr.P.C.) has prayed for quashing the said proceedings on the ground that the complaints, filed under Section138 of the Negotiable Instrument Act, 1881 (hereinafter called as the NI Act) are hit by limitations, as provided by Sections138(c) and 142(b) of the NI Act. It is the contention of the petitioner that the said complaint cases have been filed after expiry of one day of the statutory period of limitation and as such the said cases, being barred by law of limitation are not maintainable in the eye of law.
3. In the complaint case No. 3735c/2013, the complainant received the information, regarding dishonour of the concerned cheque, from the bank on 17.08.2013. He issued the statutory notice by registered A/D post on 16.09.2013 and the notice was received by the petitioner on 21.09.2013. The complaint was filed on 05.11.2013.
4. It is the contention of the petitioner that the notice was issued after expiry of 30 days and the case was also filed after one day of the date of expiry of the limitation period. According to the petitioner the last day of limitation for filing the case was on 04.11.2013, but the case was filed on 05.11.2013. Therefore, according to the petitioner, there was delay of one day in filing the case.
5. With regard to the Complaint Case No. 3736c/2013, the complainant i.e. the private respondent received information regarding dishonour of the concerned cheque on 24.08.2013 and he issued the statutory notice demanding payment on 16.09.2013. The notice was received by the petitioner on 21.09.2013. According to the petitioner the 15 days statutory period expired on 05.10.2013 and as such the cause of action started running w.e.f. 06.10.2013. It is the contention of the petitioner that the last day of limitation for filing the case was on 04.11.2013 and as such the complaint filed by the private respondent on 05.11.2013 was barred by law of limitation.
6. Mr. D.C.K. Hazarika, learned counsel for the petitioner referring to the said relevant dates, has submitted that in Complaint Case No. 3735c/2013 as the 30 days period expired on 15.09.2013 and as such the notice dated 16.09.2013 demanding payment was issued after expiry of statutory period and that the case was also filed after the expiry of one day of the statutory period of limitation which expired on 04.11.2013.
7. With regard to the Complaint Case No. 3736c/2013 the learned counsel for the petitioner has submitted the information regarding dishonour of the cheque, being received on 24.08.2013, the demand notice issued on 16.09.2013 and the notice being received by the accused/petitioner on 21.09.2013 the cause of action arose on 06.10.2013 and as such the last date of limitation being 04.11.2013, the case filed on 05.11.2013, was barred by law of limitation (i.e. delay of one day). In view of the above, the learned counsel for the petitioner has submitted that the said cases filed after the expiry of the period of limitation are not maintainable in the eye of law.
8. Refuting the said argument, advanced by the learned counsel for the petitioner, Mr. M. Choudhury, learned counsel f
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