Point of Law : Method of computation of period of limitation to file complaint under Section 138 of NI Act.

JUDGMENT :

AJIT BORTHAKUR, J.

1. Heard Mr. R.P. Sharma, learned Senior Counsel for the petitioner and Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State respondent No. 1. Also heard Mr. G.N. Sahewalla, learned Senior counsel for the respondent Nos. 2 and 3.

2. This petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India has been filed by the petitioner praying for quashing of the proceeding in NI Case No. 67/2018 pending before the court of learned Additional Chief Judicial Magistrate ( ‘Addl. CJM’ for short) Sivasagar.

3. The case of the petitioner accused proprietorship firm in brief is that the respondents No. 2 and 3, the proprietorship firm and proprietor of the aforesaid firm respectively, filed a complaint case being CR (NI) Case No. 67/2018, on 05.10.2018, in the Court of learned CJM at Sivasagar, under Section 138 of the Negotiable Instrument Act, 1881 (‘NI Act’ for short) alleging that the petitioner firm issued a cheque in favor of the respondent No. 2 for an amount of Rs.1,49,832 vide Cheque No. 855737, dated 21.06.2018, from the account No. 50140588340 of Allahabad Bank, Sivasagar Branch, towards payment of the aforesaid total outstanding sum on account of a legally enforceable debt for supply of certain materials. The said cheque was presented at the State Bank of India, ONGC Colony Branch, Sivasagar by the respondent/complainant, but the said cheque was dishonored due to insufficient fund. On request of the petitioner accused, the respondents No. 2 and 3/ complainant waited for sometime enabling him to credit the amount, but the amount was not credited. This followed issuance of notice of dishonor of cheque under Section 138 (b) of the NI Act to the drawer petitioner firm, but failed to make payment of the cheque amount. The petitioner accused firm contested the proceeding by filing a written objection under Section 143A of the NI Act.

4. In the written objection, the petitioner accused raised, inter-alia, the issue that the case was barred by limitation. In the instant petition, the petitioner accused firm has sought for quashing of the impugned entire proceeding primarily on the ground of limitation.

5. Taking up the above issue for consideration, the learned trial court heard the learned counsel of both sides and after perusal of the relevant documents passed an order, dated 07.06.2019, which reads as under (relevant portions):

“07.06.2019

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Heard the learned counsels of both sides. Mr. A.C. Dutta, learned counsel for the complainant has relied on two decisions of the Hon’ble Supreme Court in support of his contention that the case has been filed within limitation. I would like to discuss here the decisions relied on by Mr. A.C. Dutta.

In Dalmia Cement (Bharat) Ltd. vs. Galaxy Traders and Agencies Ltd. (2001) 6 SCC 463 in paragraph 6 it was held by the Hon’ble Supreme Court as follows:

6. To constitute an offence under Section 138 of the Act, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under clause (b). It is to be kept in mind that it is not the “giving” of the notice which makes the offence but it is the “receipt” of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period. This Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 considered the difference between “giving” of a notice and “receipt” of the notice and held:

“18. On the part of the payee he has to make a demand by ‘giving a notice’ in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such ‘giving’ the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days ‘of the receipt’ of the said notice. It is, therefore, clear that ‘giv