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2020 Supreme(All) 68
IN THE HIGH COURT OF ALLAHABAD
Sudhir Agarwal, J.
Mahesh Chandra Maheshwari – Applicant
Versus
Bhadohi Urban Co-operative Bank Ltd. Gyanpur – Opposite Party
Application U/s 482 No., 12606 & 12605 of 2004
Decided On : 07-02-2020
For the Applicant : Anil Kumar Bajpai
For the Opposite Party : Ajay Shanker Pandey
Point of Law
For the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose.
Headnote:
Code of Criminal Procedure, 1973 – Section 482 – Quash of Criminal proceedings – Objection filed by accused-applicant against order of summoning has been rejected – Challenged – Held, For the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly – Applications rejected.
Facts of the Case
Co-operative Bank Limited advanced a loan to applicant for a running medical shop – Cheques were deposited by Co-operative Bank for collection on 24.08.2000 but Union Bank returned the same vide Memo with the remark that fund was insufficient in the account of applicant Cheques were deposited by Co-operative Bank for collection but Union Bank returned the same vide Memo with the remark that fund was insufficient in the account of applicant.
Finding of the Court
For the purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. We hold that SIL Import USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly.
Result: Application rejected.
JUDGMENT :
1. Heard Sri Anil Kumar Bajpai, learned counsel for applicant and learned AGA for State of U.P. None appeared on behalf of complainant despite the case having been called in revise. Since it is an old matter, hence, I proceed to decide this application after hearing aforesaid counsels.
2. Application No. 12606 of 2004 has been filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") by accused-applicant Mahesh Chandra Maheshwari with a prayer to quash summoning order dated 21.11.2000 and another order dated 15.11.2004 whereby objection filed by accused-applicant against order of summoning has been rejected.
3. Facts, in brief, giving rise to the Application No. 12606 of 2004 are that M/s Bhadohi Urban Co-operative Bank Limited (hereinafter referred to as “Co-operative Bank”) advanced a loan to applicant for a running medical shop. In discharge of aforesaid loan, applicant issued cheques No. 823486 and 823487 dated 29.03.2007 for Rs.50,000/-, each, in favour of Co-operative Bank drawn on Union Bank of India, Varanasi. Cheques were deposited by Co-operative Bank for collection on 24.08.2000 but Union Bank returned the same vide Memo dated 24.08.2000 with the remark that fund was insufficient in the account of applicant. In substance, both cheques were dishonoured. Notice was given by Co-operative Bank to applicant on 06.09.2000 which was returned on 14.09.2000 as unclaimed. Complaint was filed by Co-operative Bank on 31.10.2000 whereafter Magistrate recorded statements of complainant and witnesses under Sections 200 and 202 Cr.P.C. and summoned accused-applicant for trial for an offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “Act, 1881”). Accused-applicant filed objection to the summoning order dated 21.11.2000 on the ground that he has nothing to do with M/s Hedes Multi Facets since he is not the proprietor of the said firm and as per address given, there existed a firm in the name of Maheshwari & Maheshwari since 1975 which is a joint family business and accused-applicant is not the owner of said firm also. He further said that he had not taken any loan from Co-operative Bank in his name. Loan, in fact was advanced to one Ajita Prasad Pandey son of late Kailash Nath Pandey, resident of village Bhawanipur, Police Station Gopi Ganj, District Ravidas Nagar who has taken loan by forging documents in the name of applicant and, therefore, applicant is not liable to pay any amount. He also raised objection that complaint was not maintainable having been filed by Assistant Manager who was not authorized by any Letter of Authorization or Resolution of Board of Directors of Co-operative Bank. He also contended that proceedings were initiated beyond the period prescribed under Section 138(b) of Act, 1881, inasmuch as, dishonoured cheques were returned to complainant on 24.08.2000, notice was issued on 06.09.2000 which was received back unclaimed on 14.09.2000 but complaint was filed on 31.10.2000, hence, it was barred by period of limitation prescribed under Section 142(b) of Act, 1881.
4. Said objection was rejected by Chief Judicial Magistrate concerned vide order dated 15.10.2004. Sri Bajpai, placed reliance on a Supreme Court's judgment in M/s Sil Import USA Vs. M/s Exim Aides Silk Exporters, Banglore 1999 (4) SCC 567 in support of his contention that complaint is barred by time.
5. In the connected case i.e. Application No. 12605 of 2004, similar complaint has been filed wherein also summoning order was issued on 21.11.2000 and objection of accused-applicant was rejected on 15.10.2004. Here, in connected case, cheque no. 823489 dated 30.03.2000 was issued for a sum of Rs.2,60,000/- which was returned by Union Bank of India with the remark that fund was insufficient in the account of applicant vide Memo dated 25.08.2000. Here also, notice
