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TMI Blog2022 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.1 was the owner of one mixture plant situated at Bodhjungnagar. According to the complainant, both the complainant-appellant and the accused-respondent no.1 were known to each other for their business transactions. In the month of November, 2014, the complainant supplied stone chips to the accused amounting to Rs.5,00,000/-(Rupees five lakhs) only on credit with the assurance of repayment of the same. Thereafter, the accused issued one cheque bearing No.001738 dated 01.01.2015 for an amount of Rs.5,00,000/-(Rupees five lakhs) of the Union Bank of India, Ganaraj Chowmuhani, Agartala Branch. The complainant-appellant presented the cheque bearing No.001738 dated 01.01.2015 amounting to Rs.5,00,000/- with the banker, and the same was returned back through a memorandum dated 01.01.2015 as "payment stopped by drawer'. Accordingly, the cheque dated 01.01.2015 issued by the accused became dishonoured. Thereafter, the complainant issued a demand notice dated 20.01.2015 to the accused-respondent No.1 for payment of the said amount of money, but, despite service of the legal notice, the accused failed to make the payment of the said amount to the complainant within 15 days of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138 of the NI Act has not been fulfilled as envisaged under Section 142 (b) the NI Act. I, therefore, find that, complainant has not been able to prove its case against the accused under Section 138 of the NI Act and accused is acquitted of the offence under Section 138 of the NI Act." 8. Arguing the case before this Court, Mr. Bhowmik, learned counsel appearing on behalf of the complainant, contended that the learned trial Court dismissed the case of the appellant-complainant (here-in-after referred to as "the complainant") with the observation that in filing the complaint there was a delay of 10 (ten) days and the matter was proceeded without condoning the delay as apparent on the face of the record. Consequently, the respondent no.1 was acquitted. According to the learned counsel, the learned trial Court took cognizance of the offence and proceeded with the trial. Learned counsel further pointed out that in the complaint at para-1, the complainant clearly stated that there was a delay of 10 (ten) days in filing the complaint. Learned counsel further contended that proviso to Section 142 (b) of the NI Act would not suggest that there should be a separate petition f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed beyond the statutory period, as prescribed under Section 138 of the NI Act, then, the complainant must satisfy the court that he had sufficient cause for not making the complaint within such prescribed period, i.e. within one month of the date the cause of action arises under the proviso (c) of Section 138 of the NI Act. 14. In the instant case, the cause of action arose to make the complaint to the court when the drawer of the cheque i.e. the respondent no. 1 failed to make the payment of the amount mentioned in the cheque to the complainant within 15 (fifteen) days of the receipt of the demand notice served upon the respondent no.1 by the complainant. The cause of action of making the complaint to the court arose after expiry of 15 (fifteen) days and the complaint ought to have filed within next 30 (thirty) days as embodied under clause (b) of sub-section (1) of Section 142 of the NI Act, but, the complainant made the complaint to the court after 10 days of the expiry of such one month. In other words, there was a delay of 10 days in filing the complaint by the complainant. In that situation, in terms of the proviso of clause (b) of sub-section (1) of Section 142 of the NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court to take cognizance of offence under the said provision, the complainant has to satisfy the Court that the complaint has been filed within the statutory period of 30 (thirty) days in terms of proviso to Section 142(b) appended thereto. It is settled proposition of law that the essential requirements as embodied in Section 138 of the NI Act are not mere procedural, but, substantive. 18. I am unable to agree with the submission of learned counsel appearing on behalf of the complainant that since cognizance of the complaint was taken by the learned trial Court, and culminated with trial, the matter of condonation of delay would be deemed to have been condoned, particularly, for the reason that the Court must have taken into consideration the statements made in the complaint itself regarding the delay caused in filing the complaint by the complainant. 19. I am afraid of accepting such proposition made by learned counsel appearing on behalf of the complainant. In the opinion of this Court, in this situation, the complainant must take recourse to Section 142(b) of the NI Act, which is a safeguard given by the legislature to those honest and legitimate holders of the cheque who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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