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TMI Blog2023 (8) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge from the instant case. 2. The petitioner's case is that the petitioner is a teacher of Osmania High Madrasah and is an accused in the present complaint case no.177C/2013, under Section 138 of the Negotiable Instruments Act, pending before the learned Judicial Magistrate, 1st Court, Malda. 3. On 26.03.2013, a petition of complaint was filed by the opposite party no.2 before the court of the learned Chief Judicial Magistrate, Malda, alleging commission of an offence by the petitioner punishable under Section 138 of the Negotiable Instruments Act. The said case was registered as Complaint Case No.177C/2013. 4. The allegation leveled in the said complaint are to the effect that:- a) On 23.06.2012, the petitioner took a loan from the Opposite party no.2 amounting to Rs.2,30,000/- for his personal requirement and on the same day, the petitioner simultaneously handed over to the opposite party no.2 two post dated cheques of State Bank of India, Rathbari Branch, Ramkrishnapally, Malda, bearing Cheque No.770906 of Rs.1,80,000/- and Cheque No.770907 of Rs.50,000/-, both dated 23.09.2012. The said cheques, issued in favour of opposite party no.2, were duly signed by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under Section 142 of Negotiable Instruments Act, 1881 read with Section 461(k) of the Code of Criminal Procedure, before the Court of Learned Judicial Magistrate, 1st Court, Malda, therein praying for discharge of the petitioner from the instant case, inter alia, on the ground that the cause of action for the complaint arose on 23.01.2003, as it appears from the evidence of the opposite party no.2 as well as from the exhibit 5 series, i.e. the letter of the Sub-Post Master, Malda Court, which reflects the demand notice was delivered to the petitioner on 07.01.2013. Therefore, the complaint ought to have been filed within one month of the date on which the cause of action arose i.e. on or before 22.02.2013. However, as in the instant case, complaint under Section 138 of the Negotiable Instruments Act was filed beyond the period of limitation, i.e., on 26.03.2013, without praying for condonation of delay, in contravention of section 142(b) of the Negotiable Instruments Act, the order taking cognizance is bad in the eyes of law and the petitioner is liable to be discharged from the impugned proceeding. 8. That the learned Judicial Magistrate, 1st Court, Malda upon perusing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of the opposite party no.2 and exhibits appended in the instant application it transpires that the demand notice under Section 138 of the Negotiable Instruments Act, issued through the learned Advocate of the opposite party no.2 was sent to the petitioner, at his correct address on 03.01.2013 under registered post with acknowledgment due card. As the learned advocate of the opposite party no.2 did not receive any acknowledgment due card, the opposite party no.2 slept over his remedy for an unreasonably long period and decided to make enquires with postal authority only on 18.02.2013, i.e. 46 days after the demand notice was sent to the petitioner. After the opposite party no.2, received the information/knowledge from the postal authority vide letter dated 5.3.2013 that the demand notice has been delivered to the petitioner on 7.1.2013, he preferred to file a complaint under Section 138 of Negotiable Instruments Act only on 26.3.2013. The fallacy of accepting such argument would mean that there would be no starting date of the period of 15 days as envisaged under clause (c) of Section 138 of the Negotiable Instruments Act as the complainant may take any length of time, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, as informed by the post office on a written query by the opposite party no.2 dated 18.02.2013. Parties both reside at Malda. 18. The petitioner has relied on the Judgment in:- (i) Sadanandan Bhadran v. Madhavan Sunil Kumar, reported in (1998) 6 SCC 514. 19. The opposite party has relied on the judgment in:- (i) Bhabani Shankar Agarwal vs. State of West Bengal & Anr., reported in (2007) BC 81, 2006(4) CHN 724. (ii) A. K. Maheshwary v. State of West Bengal, reported in 2011 SCC OnLine Cal 5466 : (2012) 115 AIC 753. 20. Section 142(b) of the N.I. Act- "142 Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) ..................................... (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: 24 [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.]" 21. In the present case the complaint was filed on 26.03.2013, with a delay of 32 days without an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice. Such a notice, as has been held by a Three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed and Another [(2007) 6 SCC 555] should be construed liberally, stating : "17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under: "18. It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how Section 25 will have any application in the instant case. Furthermore, Section 25 being a substantive provision will have no retrospective effect. The original award was passed on 8-2-1981: Section 25, as it stands now, may, therefore, not have any application in the instant case." The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura [2008 AIR SCW 295] holding: "8. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and, for the purpose of including the last in a series of days or any other period of time, to use the word 'to'. 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 15t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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