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TMI Blog2023 (8) TMI 1225X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Metropolitan Magistrate, 17th Court at Calcutta. 2. The petitioner's case is that the petitioner no. 1 is a partnership firm having its office at P-27, Princep Street, Police Station-Hare Street, Kolkata-700 072, duly represented by its partners namely Mr. Niaz Ahjmed and Mrs. Indrani Chakraborty, being the petitioner no. 2 and 3 herein. 3. The petitioners were placed on trial in complaint case no. 26691 of 2011 under Section 138/141 of the Negotiable Instruments Act, 1881. 4. By the Judgment and Order dated 04.01.2018 passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in complaint case no. 26691 of 2011 under Sections 138/141 of the Negotiable Instruments Act, 1881, as amended thereunder the petitioners were convicted and sentenced to pay compensation of Rs. 50,000/- to the complainant within one month in default to suffer simple imprisonment for one month each. 5. Being aggrieved by and dissatisfied with the judgment and order of conviction dated 04.01.2018, the petitioners preferred an appeal, before the learned Chief Judge, City Sessions Court, Bichar Bhawan at Kolkata being Criminal Appeal No. 124 of 2018. 6. Vide order dated 17.12.2019, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed against her. She further deposed that she paid cash of Rs. 10,000/- (Rupees Ten Thousand) only to the complainant against cheque, money receipt of Rs. 10,000/-(Rupees Ten thousand) only dated 27.06.2011 is marked as Exhibit-'A'. 15. She further deposed that the complainant used to look after works related to tax but did not appear in the tax related matter of the complainant on various dates in 2010, as a result of which ex-parte order was passed. 16. She also deposed that the complainant used to keep books of accounts and other valuable accounts, in tax related matter and subsequently refused to hand over the various documents for which the petitioner herein faced trouble in filing appeal. Then there was a settlement and she received some documents against which she paid cash of Rs. 10,000/-(Rupees Ten thousand) only as professional remuneration but did not receive the balance documents. 17. The complainant without returning the balance document and not discharging his professional obligation, deposited the set-forth security cheque which got dishonored. 18. It is stated that there is nothing to show that any specific question was put by the complainant ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 2008 SC 3086. viii. Sivakumar vs Natarajan, (2009) 13 SCC 623. ix. ECON Antri Ltd. v. ROM Industries Ltd. and Anr., 2013 Cri. L. J. 4195. x. Peddireddy Sanjeeva Reddy v. State of A.P. & Anr., 2015 ACD 62 (HYD). xi. Abdul Jakir v. State of U.P., AIRONLINE 2020 ALL 1628. 23. Mr. Kamal Krishna Lahiri, learned counsel for the opposite party has submitted on filing the written notes of argument on behalf of the opposite party that the petitioners are mostly concerned about the point of limitation alleging that the complaint case is barred by limitation as it was not filed in accordance with Section 142(b) of the N.I. Act within the prescribed time. Most of the grounds for grievance (Ground nos. VII, VIII, IX, X) are directed against such point and much stress was given on that while making arguments, both at the appeal court as also before this Hon'ble Court on 12.02.2019 and 05.06.2023. Although in the court of the appeal the learned advocate on behalf of the complainant/opposite party no. 2 argued in his own way to controvert the accused appellants' contention that one month means 30 days of a calendar month according to General Clauses Act and that the point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained about legally enforceable liability in his judgment. That apart oral evidence of DW-2 as recorded in this regard clearly indicated their malafide. 30. Mr. Lahiri has relied upon the following judgment:- (a) M/s. Saketh India Ltd. vs M/s. India Securities Ltd., AIR 1999 SC 1090, Criminal Appeal Nos. 288-289 of 1999 (SLP (Cri.) Nos. 262-263 of 1998) on 10.03.1999, wherein the Supreme Court held:- "3. In the present case, cheques dated 15-3-1995 and 16-3-1995 issued by the appellants bounced when presented for encashment as per the bank endorsement. Notices were served on the accused on 29-9-1995. As per Section 138(c) the 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 15-10-1995. Complaints were filed on 15-11-1995. Therefore, it is contended that the complaints were filed beyond time. The 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 XIth Additional Chief Metropolitan Magistrate, Bangalore. Those petitions we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash M. Shah (2008) 13 SCC 689]. 21. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all." Therefore, the petitioner raising the point of limitation at any stage is permissible. 32. The petitioners/accuseds next contentions are as follows:- i) That the complaint under Section 138 N.I. Act is barred by limitation (delay of two days). No application under Section 142(b) of N.I. Act has been filed praying for condonation of such delay. ii) That the cheque in question was given as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by action in respect of money demand." Lindey L.J in Webb v. Strention 1888 QBD 518 defined debt as "... a sum of money which is now payable or will become payable in the future by reason of a present obligation, debitum in praesenti, solvendum in futuro." The definition was adopted by this Court in Keshoram Industries v. CWT AIR 1966 SC 1370. Justice Mookerjee writing for a Full Bench of the Calcutta High Court in Banchharam Majumdar v. Adyanath Bhattacharjee (1909) ILR 36 Cal 936 adopted the definition provided by the Supreme Court of California in People v. Arguello 1869 37 Calif 524: "Standing alone, the word 'debt' is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable. If we wish to distinguish between the two, we say of the former that it is a debt owing, and of the latter that it is a debt due. In other words, debts are of two kinds: solvendum in praesenti and solvendum in future ... A sum of money which is certainly and in all events payable is a debt, without regard to the fact whether it be payable now or at a future time. A sum payable upon a contingency, however, is not a debt or does not become a debt until the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs 2 crores and six cheques were issued as security. The High Court had held that since under the loan agreement the cheques were given by way of security, the complaint could not be maintained. Justice AS Bopanna, speaking for the two judge bench, adverted to the earlier decision in Indus Airways and the distinguishing features which were noticed in the decision in Sampelly. The Court held that where in the case of a loan transaction, the borrower agrees to repay the amount in a specified time frame and issues a cheque as a security to secure the repayment and the loan is not repaid, the cheque which is issued as security would mature for presentation. The Court observed: "17. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint, insofar as it invoked the provisions of Section 138 of the NI Act, was accordingly restored to the Judicial Magistrate to proceed in accordance with law." 41. In the present case, the cheque was issued towards the complainant's professional fees and the petitioner has admitted paying a sum of only Rs. 10,000/-. 42. Thus, considering the materials on record and in view of the discussions made, the judgment under revision being in accordance with law, needs no interference by this court. 43. The Order dated 17.12.2019 passed by the learned Additional Sessions Judge, F.T.C.-2, City Sessions Court, Bichar Bhawan at Kolkata in Criminal Appeal No. 124 of 2018, arising out of Complaint case no. 26691 of 2011 under Sections 138/141 of the Negotiable Instruments Act, 1881, as amended thereunder thereby dismissing the said Criminal Appeal on contest and affirming the Order dated 04.01.2018 passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in connection with Complaint Case No. 26691 of 2014 under Section 138 of the Negotiable Instruments Act and Judgment and Order dated 04.01.2018 passed in complaint case no. 26691 of 2011 under Sections 138/141 of the Nego ..... X X X X Extracts X X X X X X X X Extracts X X X X
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