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TMI Blog2022 (8) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner 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. 2. 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. 5014058 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant 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. AC Dutta. In Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders & 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. Having discussed the allegations and counter allegations of both parties, I would like to state here that in this case cognizance had already been taken and the accused had received summon from the Court. At this stage, this Court has no power to draw proceeding and discharge the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted question of fact and law pertaining to limitation is still subjudiced in the trial court, which is the primary ground in the instant petition for the prayer for quashing and setting aside the impugned proceeding under Section 138 of the NI Act and on the other hand, it is noticed that the petitioner accused has newly impleaded one Gopal Prasad Joshi, the partner of the complainant firm as respondent No. 4 who, as stated above, is not a party in the complaint case. In such backdrop of facts, this Court is not inclined to render any effective judicial decision on the aforestated prayer of the petitioner. 9. Accordingly, the petition stands dismissed. 10. The learned trial court is directed to take a decision on the point of Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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