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TMI Blog2022 (4) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... Rakhal Mallik to suffer S.I. for 1(one) year and pay a fine of Rs. 22,00,000/- in default to suffer SI for 6(six) months. [3] The petitioner before this Court is a defaulter of cheque. The cheque issued by him was dishonoured. The cheque amount is Rs. 11,00,000/- and the Court below has passed the order of conviction with a fine of Rs. 22,00,000/-. [4] In gist, the case of the prosecution as it appears from the copy of the judgment of learned trial Court is that, complainant Sri Umesh Majumder render service by providing materials, goods, i.e. brick, chips, cement, etc. and labourers to the accused-petitioner for execution of the work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block and accordingly the accused-petitioner has been liable to pay Rs. 11,00,000/- to the complainant as the cost of said materials, goods and labourers, etc. and in discharge of his said liability accused-petitioner issued a cheque vide No. 623748, dated 15.04.2016 of Rs. 11,00,000/- drawn on the bank account of accused-petitioner vide Account No. 0261010107800 lying in the United Bank of India, Belonia Branch. On 03.06.2016 the complainant presented the said cheque to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed as under: "So, in the totality of the evidence and materials available on record I find no impropriety in the judgment of learned trial Court justifying any interference from this Court. I find no merit in the appeal. Thus, the appeal is dismissed. The convict-petitioner is hereby directed to surrender before learned trial Court within one month from today to undergo the sentence and to pay the fine amount." [8] Being aggrieved by and dissatisfied with the impugned judgment and order dated 01.03.2021 passed by the learned Sessions Judge, South Tripura, Belonia upholding the judgment and sentence dated 18.06.2019 awarded by the learned CJM, Belonia, South Tripura, the present petition has been preferred by the petitioner. [9] In support of the case of the petitioner Mr. P. K. Pal, learned counsel appearing for the petitioner has submitted that both the courts below have erred both on points of law and facts in awarding the sentence to the accused petitioner. He has further submitted that the learned Sessions Judge ought to have applied his mind on the records to ascertain as to whether the learned trial Court has passed the judgment and sentence in consonance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination on the question of liabilities of the accused, the complainant deposed that "the accused was indebted me for the alleged amount as I have performed some Govt. construction works on his behalf" (emphasis added). This statement of the complainant on deposition in entirety varies from the statement made in the complaint petition as the complainant failed to answer to the specific question on the existence of the consideration and the actual fact behind the quantum of liability which were the probable defence of the accused and the depositions of the PW-1 shades doubt as to whether he was the supplier of materials or, he had actually performed the work on behalf of the accused. Hence, the burden of proof shifted on the complainant remained disproved and thereby, the preponderance of probabilities is in favour of the accused. [14] The Appellate Court ought to have been come to the conclusion that the proceeding before the learned Trial Court was vitiated by the non-affording the natural justice to the accused as there was no specific documentary evidence as regards the probabilities as to when and how the extent of debts or liabilities presumed to have been occurred against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fteen days from the date of receipt of the notice." [18] In the light of the above submissions and evidence on record, let me discuss whether learned trial Court committed any wrong in convicting the petitioner. The complainant Sri Umesh Majumder was examined himself as PW-1, and according to him, he render service by providing brick, chips, cement, etc. and labourers to the accused-petitioner for execution of the work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block and accordingly the accused-petitioner has been liable to pay Rs. 11,00,000/- to him as the cost of said materials, goods and labourers, etc. and in discharge of his said liability accused-petitioner issued a cheque vide No. 623748, dated 15.04.2016 of Rs. 11,00,000/- drawn on the bank account of accused-petitioner vide Account No. 0261010107800 lying in the United Bank of India, Belonia Branch. On 03.06.2016 he presented the said cheque to his banker, i.e. the State Bank of India, Belonia Branch through his account vide Account No. 30791798956 for collection of the aforesaid cheque amount. The SBI, Belonia Branch forwarded the said cheque to UBI, Belonia Branch, i.e., the banker of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Sujit Das in his examination-in-chief has stated that he worked as a mason in the contrary work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block under the supervision of PW-1 as the accused-petitioner engaged him to supervise his said contrary work and PW-1 rendered service by providing brick chips, sand, cement and labourers to the petitioner for execution of work and in discharge of the said liabilities the petitioner issued a cheque to PW-1 and subsequently PW-1 deposited the said cheque for encashment and he heard from PW-1 that the said cheque was dishonoured. [23] PW-3, Sri Khokan Ch. Bhowmik in his examination-inchief also stated that he knows the petitioner since he worked few contrary works with him as a partner and also know the complainant. He also stated that the petitioner executed the construction work of roads construction (under PMGSY) within the jurisdiction of Hrishyamukh R.D. Block and in executing the said work the petitioner engaged PW-1 for providing brick chips, sand, cement etc. and labourers including supervision of the said work and in discharge of the said liabilities the petitioner issued a cheque to PW-1 and subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resented against a legally recoverable liability in favour of the complainant and the cheque was dishonoured for the reason of insufficient fund, the cheque is drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice. [27] The only argument of the counsel appearing for the petitioner- who has defaulted the payment of the cheque amount is that the case is filed after completing of 30 days and there is no application of limitation Act of Section-138 and thus the Courts below ought to have rejected the complaint but instead, has entertained the complaint and allowed the petition and convicted the petitioner herein. [28] Learned counsel appearing for the respondent has submitted that the complaint is filed within 30 days and the question of 1 (one) day delay is not there and the order passed by the trial Court in entertaining and imposing the fine and conviction is correct and prayed to dismiss the case. [29] Learned counsel appearing for the respondent has submitted that the complaint has been filed within 30 days as contemplated under the Act and there is no delay of one day as contended by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless" (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fteen days of the receipt of the said notice. [34] Section-142 of NI Act has already been discussed supra. The Apex Court in Econ Antri Limited v. Rom Industries Limited and Another, reported in (2014) 11 SCC 769, has held thus: (c) of the proviso to Section 138 of the NI Act?" The same question was reframed in simpler language as under: "Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?" "9. In Saketh cheques dated 15/3/1995 and 16/3/1995 issued by the accused therein bounced when presented for encashment. Notices were served on the accused on 29/9/1995. As per proviso (c) to Section 138 of the NI Act, the accused were required to make the payment of the said amount within 15 days of the receipt of the notice i.e. on or before 14/10/1995. The accused failed to pay the amount. The cause of action, therefore, arose on 15/10/1995. According to the complainant for calculating one month's period contemplated under Section 142(b), the date '15/10/1995' has to be excluded. The complaint filed on 15/11/1995 was, therefore, within time. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in the case in which that person is not necessarily cognisant of the act or event; and further in support of it there is the consideration that in case the period allowed was one day only, the consequence of including that day would be to reduce to a few hours or minutes the time within which the person affected should take action. 208. In view of these considerations the general rule is that, as well in cases where the limitation of time is imposed by the act of a party as in those where it is imposed by statute, the day from which the time begins to run is excluded; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation." Reliance was also placed in this judgment on Radcliffe v. Bartholomew[20]. In that case on June 30 an information was laid against the petitioner therein in respect of an act of cruelty alleged to have been committed by him on May 30. An objection was taken on the ground that the complaint had not been made within one calendar month after the cause of the complaint had arisen. It was held that the day on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed petitioners approached the High Court by filing petition under Section 482 of the Criminal Procedure Code for quashing and setting aside the process issued by the XI Additional Chief Metropolitan Magistrate, Bangalore. Those petitions were rejected by the High Court by common order and Judgment dated 25th September, 1997. Hence, these appeals. 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last.. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer, expires. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day(15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the date from which time runs is respect of particular cause of action is considered further subsequently in relation to the causes of action in question. Period within which an act must be done 336. Exclusion of first day. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This general rule applies irrespective of whether the limitation of time is imposed by the act of a party or by statute. Thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation. So, also, where a statute provides that something may only be done within a certain period from the passing of the Act, the day on which the Act was passed is excluded; and many other instances may be cited. In particular, where an act is required by the Civil Procedure Rules, a practice direction or by any judgment or order of the court to be done within a specified period, the day on which the period begins is not included ..... X X X X Extracts X X X X X X X X Extracts X X X X
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