9911796707
TMI Blog2023 (8) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - The Hon ble Justice Shampa Dutt (Paul) For the petitioner : Mr. Sandipan Ganguly, Sr. Adv. Mr. Arkadeb Bhattacharya For the Opposite Party No.2 : Mr. Partha Sarathi Das, Mr. Ambu Bindu Chakraborty ORDER Shampa Dutt (Paul), J. 1. The present revision has been preferred praying for quashing of the proceeding of complaint case No.177C/2013 under Section 138 of the Negotiable Instruments Act, pending before the learned Judicial Magistrate, 1st Court, Malda and setting aside of the order dated 29.06.2019 passed by the learned Additional Sessions Judge, 5th Court, Malda in Criminal Revision No.12 of 2018, thereby dismissing the revisional application filed by the petitioner and affirming the order dated 05.01.2018 passed by the learned Judicial Magistrate, 1st Court, Malda in complaint case No.177C of 2013 and Order dated 05.01.2018 passed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority regarding confirmation of delivery of the said notice. e) The Sub Post Master, Malda Court Post Office, Malda by his letter dated 05.03.2013 informed the learned advocate of the petitioner that the above noted registered notice has been delivered to the petitioner on 07.01.2013. In spite of receiving the demand notice on 07.01.2013, the petitioner failed to make payment of the sum of Rs.2,30,000/- within the statutory period of 15 days from the receipt of notice. f) The accused/petitioner has thus committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (as amended till date). 5. The learned Chief Judicial Magistrate, Malda, upon receipt of the said complaint, was pleased by his order dated 02.04.2013 to take cognizance of the offence. 6. The petitioner was examined under Section 251 of the Code of Criminal Procedure whereupon the substance of the accusation under Section 138 of the Negotiable Instruments Act was read over and explained to him to which he pleaded 'not guilty' and claimed to be tried. 7. That during the pendency of trial, since there had been delay in filing of the complaint under Section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.12 of 2018. 10. The learned Additional District Sessions Judge, 5th Court, Malda upon hearing the learned advocates appearing for the petitioner and the opposite party no.2 and after perusing the materials on record was pleased by his Judgment and Order dated 29.06.2019 to dismiss the criminal revision application, thereby affirming the order dated 05.01.2018 passed by learned Judicial Magistrate, 1st Court, Malda in complaint case No.177C/2013 and by the self same order, the learned Judge further directed the learned trial court to conclude the trial within six months from the date of receipt of record. 11. In the instant case, it is submitted that it appears from the evidence of the opposite party no.2 and from exhibit-5 i.e. the Letter of the Sub-Post Master, Malda Court, that the petitioner received the demand notice on 7.1.2013 and the cause of action arose on 23.1.2013. Therefore, the complaint under Section 138 of the Negotiable Instruments Act ought to have been filed within one month i.e. on or before 22.2.2013. However, in the instant case, the complaint was filed on 26.03.2013 and same being barred by limitation under Section 142 of the said Act, deserves to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y no.2 received such information at a later date, precisely on 5.3.2013 and the complaint was filed within one month from receiving such intimation of postal authority, the complaint was not barred by limitation. 16. From the materials on record it is seen that:- On 7.12.2012 O.P 2 presented two cheques Rs.1,80,000/- and Rs.50,000/- for encashment. On 8.12.2012 Said cheques were returned with remarks insufficient fund . On 3.1.2013 Demand Notice was issued to petitioner by complainant through learned Advocate. On 7.1.2013 Demand Notice was received by petitioner/drawer of cheque. (As stated by Sub Post Master, Malda P.O vide letter dated 5.3.2013). On 18.2.2013 O.P.2 through his learned Advocate sent a letter to Superintendent of Post Office, Malda Post Office as he had not received the Ackowledgement Due Card of the demand notice. On 5.3.2013 Sub Post Master, Malda P.O informed the learned advocate of O.P 2 that the demand notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under: 27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expression `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Thirty days' time ordinarily must be held to be sufficient for service of notice. In fact when the service of notice is sought to be effected by Speed Post, ordinarily the service takes place within a few days. Even under Order V, Rule 9(5) of the Code of Civil Procedure, 1908, summons is presumed to be served if it does not come back within thirty days. In a situation of this nature, there was no occasion for the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001. 24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation on sufficient cause being shown would be enacted. 23. In M/s Saketh India Limited Ors. vs M/s. India Securities Limited, Criminal Appeal Nos. 288-289 of 1999 (@ SLP (Cri.) Nos. 262-263 of 1998), on 10 March, 1999, the Supreme Court held that:- .In the present case, cheques dated 15th and 16th March, 1995 issued by the appellants bounced when presented for encashment as per the bank endorsement. Notices were served on the accused on 29th September, 1995. As per section 138 (c) accused were required to make payment of the said amount of money within 15 days. The accused failed to pay the said amount, hence the cause of action for filing the complaint arose from 15th October, 1995. Complaints were filed on 15th November, 1995. Therefore, it is contended that complaints were filed beyond time. Accused 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. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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. (i) Thus the Magistrate was wrong in taking cognizance without compliance of Section 142(b) of the N.I. Act. (ii) In view of the judgment in Subodh S. Salaskar vs. Jayprakash M. Shah Anr. (Supra) and M/s Saketh India Limited Ors. vs M/s. India Securities Limited (Supra) the petition of complaint is clearly barred by limitation. 26. Accordingly, 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. 27. The revisional application being CRR 2499 of 2019 is allowed. 28. The order dated 29.06.2019 passed by the learned Additional Sessions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
