The Tax Publishers 2022 TaxPub(CL) 2919 (Cal-HC)

THE NEGOTIABLE INSTRUMENTS ACT, 1881

Section 138

Where Sessions Court quashed order of conviction against borrower on the ground that complaint was barred by limitation, but lender filed evidences, which proved that the complaint was within statutory period as provided under section 142(b), therefore, the complaint was not barred by limitation, the judgment of the Sessions Court was set aside.

Dishonour of cheque - Appeal against quashing of order of conviction - Calculation of statutory period for filing of complaint under section 142 - Whether complaint is barred by limitation

Lender filed a complaint under section 138 against borrower, wherein Magistrate passed order of conviction against the borrower. Borrower filed an appeal against the order on the ground that the complaint was barred by limitation, wherein the order of conviction was set aside by Sessions Judge. Therefore, the lender filed an appeal against the judgment of the Sessions Court. Held: The Lender sent a legal notice which was received by the borrower on 12-2-1997 and the payment was to be made within 15 days, i.e., by 28-2-1997. So the cause of action arose on 1-3-1997 (12-2-1997 and 28-2-1997 to be excluded). The month of February 1997 had 28 days, so from 1-3-1997, one month (30 days) shall be within 30-3-1997. Admittedly, 28-3-1997 was a holiday being Good Friday and the case was filed on 29-3-1997, i.e., within the statutory period. Thus, the judgment of the Sessions Court was set aside.

REFERRED :

FAVOUR : In Favour of Appellant

A.Y. :



IN THE CALCUTTA HIGH COURT

SHAMPA DUTT (PAUL), J.

Vishal Dalmia v. Gour Chandra Sarkar

CRA 121 of 2002

5 September, 2022

Appellant/Complainant by: Rita Datta

Opposite Party/Accused by: Pushpita Saha (from the State panel)

ORDER

Shampa Dutt (Paul), J.

This appeal is directed against judgment and Order, dated 30-1-2002 passed by the learned Judge, 10th Bench, City Sessions Court, Calcutta in Criminal Appeal No. 62 of 2000 setting aside the judgment and order of conviction and sentence dated 30-8-2000 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta in Complaint Case No. C-869/1997 and thereby the Sessions Court acquitted the respondent from the charge levelled against him.

The appeal has been filed on the ground that the notice of intimation of the dishonoured cheque was admittedly received by the appellant/complainant on 29-1-1997. The notice under section 138 N.I. Act was issued on 11-2-1992 and received by the respondents/accused on 12-2-1997. The period within which the respondent should have paid the amount of the dishonoured cheque, i.e., within 15 days of receipt of the notice which is 27-2-1997 (though this Court finds that the date should be 28-2-1997) as the date of intimation of the dishonoured cheque is to be excluded from the period of 15 days). The appellant submits that the cause of action arose on 28-2-1997, i.e., on the next date after 27-2-1997 (12+15=27) and the complaint was filed within one month, i.e., 29-3-1997 (though it is seen that the cause of action arose on 1-3-1997) 13.2+15 = 28-2-1997, cause of action rises on 1-3-1997 as (February 1997 had 28 days) 12-2-1997 and 28-2-1997 is to be excluded. It is further case of the appellant/complainant that the learned Sessions Judge came to the wrong conclusion that the case should have been filed on/or before 26-3-1997 as there has been an error in calculation and hence the judgment and order under this appeal being erroneous is liable to be set aside.

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