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TMI Blog2016 (12) TMI 1883X X X X Extracts X X X X X X X X Extracts X X X X ..... od of limitation. The complaint was filed within three days of that that is on 14.03.2000 and as such the complaint was filed perfectly within time. This court reiterates that the complaint is not hit by the period of limitation as prescribed under Sections 138 and 142 of the Act of 1881 - It may not be out of place to mention that it is the admitted position that the relationship between the parties was that of client and advocate and naturally such relationship was fiduciary one and there was nothing wrong on the part of the complainant when he advanced Rs. 2,85,000/-. Whether the cheque was issued in discharge of existing liability? - HELD THAT:- Regarding the applicability of Section 8 and Section 13 of the West Bengal Moneylenders Act, this Court is of the view that the said act has not barred money lending but it has only regulated the money lending. Thus, even if one person who has no money lending licence cannot be debarred from granting any accommodation loan to his friend or other person on him he has confidence. The opposite party took the accommodation loan and he now cannot take the shelter of the West Bengal money lenders' act to defraud the person who accomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /accused must surrender before the learned trial court to serve out the sentence within one month from this day. Failure to comply with this order will entitle the learned trial court to issue warrant of arrest against this accused/opposite party. This criminal revisional application succeeds in part. - C.R.R. 856 of 2013 and C.R.A.N. 1728 of 2016 - - - Dated:- 6-12-2016 - Indrajit Chatterjee, J. For Appellant: Tapan Dutta Gupta and Rafikul Islam Sardar For Respondents: Madan Mohan Roy JUDGMENT Indrajit Chatterjee, J. 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure in which this present petitioner who was accused in Complaint Case No. 316 of 2000 under Section 138 of the N.I. Act has assailed the judgment and order dated 4th March, 2013 passed by the learned Additional Sessions Judge, 2nd Court at Howrah in Criminal Appeal No. 2 of 2009 by which the said learned Judge was pleased to affirm the judgment and order of conviction passed by the learned Additional Chief Judicial Magistrate, Howrah on 18/12/2008. The case relevant for the purpose of adjudication of this revisional application can be state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate court is being assailed. 5. It has been argued by Mr. Dutta Gupta, the learned advocate for the requisitionist by taking me to the list of dates which has been taken on record that the cause of action came down to Rs. 1,85,000/- as after receipt of the notice accused/convict paid Rs. 1 lakh and that was duly accepted by the complainant before filing of the complaint on March 14, 2000 and as such demand notice is defective and a separate demand notice ought to have been issued. 6. He further submitted that the cause of action arose from the date of receipt of notice which was received on February 02, 2000 and the said Act vide Sections 138 and 142 has fixed after the expiry of the period of limitation. He doubted the source of the complainant to pay such huge amount. 7. He further submitted that the complainant received the return memo from the banker on January 20, 2000 vide Ext. 8 and the complaint was filed on March 14, 2000 the period of limitation as prescribed was already over. 8. He further contended by taking me to the complaint that no prayer was made in the complaint for realisation of the money. He referred the decision of the Apex Court as delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o judgments to be interfered with. 14. He further submitted that actually the cause of action arose from the date of acceptance of Rs. 1 lakh and non-payment of the remaining amount even though the statutory notice was served. He reiterated that Rs. 1 lakh was paid and accepted on March 11, 2000 and the complaint was filed on March 14, 2000. He further submitted that part payment cannot change the cause of action which is a bundle of facts. 15. Regarding the point of period of limitation, he has submitted relying on the decision of the Apex Court in the case of Tameeshwar Vaishnav (Supra) and by taking me to Section 138 and Section 142 of the Said Act to say that actually the period of limitation is not 45 days but it is 75 days, the breakup being 30 days + 15 days + 30 days = 75 days. He took me to Section 142(B) of the said Act the relevant portion runs thus: such complaint is made within one month on which the cause of action arises under Clause C of the proviso to Section 138.... 16. Regarding the question of part payment he has submitted that when Rs. 1 lakh was paid it can be presumed that there was existing liability for which the petitioner convict paid that Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h to defeat the entire cause of action? (5) Whether the learned Trial Court had authority to impose the fine amount to the tune of Rs. 2,85,000/- in view of the bar under Section 29 of the Criminal Procedure Code? 21. Regarding point No. 1: this Court is of the considered view that simply because Rs. 1 lakh was received by the complainant after issuance of statutory notice is enough to deviate from the cause of action. The decision of Kerala High Court as passed in Shiju K. (Supra) can have only persuasive value as it is a decision of the other High Courts. This Court is not unmindful of the other decisions on this point as reported in 2006 Cri LJ 3276 (Madras)(Synergy Credit Corporation Ltd. Vs. Midland Industries Ltd.) and 1999 (3) Crimes 504 (Andhra Engineering Corpn. Vs. TCI Finance Ltd.) that merely because the accused has paid some amount of the cheque but that will not absolve him from the legal enforceable liability. This Court has also relied upon the decision of the Bombay High as cited by the opposite party as passed in Vishnu Bhat (Supra). Thus this Court is satisfied that simply because of Rs. 1 lakh was paid by the accused/revisionist after issuance of the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability. Holder of a cheque stands in a better footing under the said Act as he carries with him the presumption of Section 139 of the said Act. it is true that the said presumption is rebuttable one. The burden to disprove that the cheque was not issued in discharge of existing liabilities squarely lies upon the drawer of such cheque here the opposite party advocate. The role of such drawer on receipt of such notice as contemplated under Section 138 of the Said Act before the floor of the trial court that on receipt of such notice he paid Rs. 1 lakh as part payment. 27. Thus, this opposite party accused cannot now say without any convincing evidence that the said cheque was not issued in discharge of existing liability. There is no reason to disbelieve the claim of the complainant appellant that the said cheque was issued in discharge of existing liability. 28. Regarding the applicability of Section 8 and Section 13 of the West Bengal Moneylenders Act, this Court is of the view that the said act has not barred money lending but it has only regulated the money lending. Thus, even if one person who has no money lending licence cannot be debarred from granting any accommodation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduce the substantive sentence to make it simple imprisonment for ten days but at the same time the fine amount is being converted to compensation under Section 357 (3) of the Code of 1973 and the amount is enhanced from Rs. 2,85,000/- to 3,70,000/- in default of such payment the accused/opposite party will suffer simple imprisonment for further one year. 32. Thus, this issue is answered accordingly in part in favour of the appellant. 33. Thus, this criminal revisional application succeeds in part. The finding of guilt as assessed by the learned trial court and affirmed by the first appellate court is hereby reaffirmed. 34. The substantive sentence is reduced from 4 months Simple Imprisonment to 10 days. The fine is converted as compensation but the amount is increased to Rs. 3,70,000/- being double of the amount of Rs. 1,85,000/-. If this amount is not paid then this opposite party accused will have to suffer further Simple Imprisonment for one year more. 35. Such payment of Rs. 3,70,000/- (three lakhs seventy thousand) is to be deposited by the opposite party before the learned trial court by way of demand draft in the name of the complainant appellant within one mon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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