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2023 (8) TMI 597 - HC - Indian LawsDishonour of Cheque - delay in filing of the complaint under Section 138 of the Negotiable Instruments Act, beyond the period of limitation as envisaged under Section 142(b) of the Negotiable Instruments Act - HELD THAT - Admittedly, 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, and thus the case is made out, that the complaint is not barred by limitation. So even if it is taken that the date of receipt was not within the knowledge of the complainant, the service is deemed to be made/effected within 30 days of sending it. So 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. The order under revision dated 29.06.2019 the order dated 05.01.2018 of the Judicial Magistrate, 1st Court, Malda in 177C/2013 and the Magistrate taking cognizance on 02.04.2013 are all set aside being bad in law - Revision allowed.
Issues Involved:
1. Quashing of the complaint under Section 138 of the Negotiable Instruments Act. 2. Validity of the order dated 29.06.2019 passed by the Additional Sessions Judge, Malda. 3. Limitation period for filing the complaint under Section 138 of the Negotiable Instruments Act. Summary: Issue 1: Quashing of the Complaint under Section 138 of the Negotiable Instruments Act The petitioner sought to quash the proceedings of Complaint Case No.177C/2013 under Section 138 of the Negotiable Instruments Act, pending before the Judicial Magistrate, Malda. The petitioner argued that the complaint was filed beyond the limitation period as prescribed under Section 142(b) of the Negotiable Instruments Act. The demand notice was received by the petitioner on 07.01.2013, and the complaint should have been filed by 22.02.2013. However, it was filed on 26.03.2013 without an application for condonation of delay. Issue 2: Validity of the Order Dated 29.06.2019 by the Additional Sessions Judge, Malda The Additional Sessions Judge, Malda, dismissed the revisional application filed by the petitioner and affirmed the order dated 05.01.2018 by the Judicial Magistrate, Malda. The petitioner contended that the orders were arbitrary and unreasonable. The court held that the complaint was barred by limitation and the orders taking cognizance were bad in law. Thus, the orders dated 29.06.2019 and 05.01.2018 were set aside. Issue 3: Limitation Period for Filing the Complaint under Section 138 of the Negotiable Instruments Act The court analyzed the timeline of events: - Cheques presented on 07.12.2012 and returned on 08.12.2012 due to insufficient funds. - Demand notice issued on 03.01.2013 and received by the petitioner on 07.01.2013. - Complaint filed on 26.03.2013 without condonation of delay. The court referred to judgments in Subodh S. Salaskar vs. Jayprakash M. Shah and M/s Saketh India Limited vs. M/s. India Securities Limited, emphasizing that the complaint was barred by limitation. The court concluded that the complaint should have been filed within one month from the date the cause of action arose, which was not done in this case. Conclusion: The revisional application was allowed, and the orders dated 29.06.2019 and 05.01.2018 were set aside. The complaint was deemed barred by limitation, and the proceedings were quashed. The opposite party was given liberty to avail the provision under Section 142(b) of the N.I. Act within one month from the date of the order.
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