ASHWINI KUMAR JULKA Vs. LT COL PARTHOJIT CHOUDHARY

JUDGEMENT

(1.) The respondent herein is the complainant, who has filed complaint under Section 138 of the Negotiable Instruments Act (in short the 'NI Act') against M/s. Niket Enterprises (accused No.1), a sole proprietorship concern of Sh. Ashwini Kumar Julka, who has also been impleaded as accused No.2. This complaint is filed through Lt. Col. K.B. Sharma (Retd.) as the legally Constituted special attorney (hereinafter referred to as the 'Attorney'). It is alleged in the complaint that the attorney and the complainant are friends for over 20 years. The attorney is a freelance export/import consultant and came into contact with the accused person in the course of business. The accused was badly in need of money to honour his personal business orders and requested the attorney for loan. On the recommendation of the attorney the complainant advanced Rs. 3,00,000/- as loan to the accused by means of two bank drafts of Rs. 1,00,000/- and Rs. 2,00,000/- dated 4.5.1996 and 3.6.1996 respectively. The accused executed a promissory note dated 5.6.1996 and also handed over three post-dated cheques of Rs. 1,00,000/- each all dated 4.9.1996. When these cheques were presented for payment on due date, they were returned unpaid with memo dated 7.10.1996 with the remarks "not arranged for." The accused was immediately informed, who requested the complainant to present the cheques again. However, when the cheques were presented the second time on 14.10.1996, they were returned dishonoured with the same remarks. Once again, on the representation of the accused, cheques were presented on 4.11.1996 but were returned unpaid vide returning memo dated 6.11.1996 with same remarks. The legal notice dated 13.11.1996 demanding the accused to make the payment was accordingly sent by registered AD post at his official as well as residential addresses. The registered AD letter sent at the residential address of the accused was returned undelivered on 30.11.1996 with the endorsement "On repeatedly going to him the receiver (addressee) does not meet. Hence being returned." The registered letter sent at the official address of the accused was returned undelivered on 9.12.1996 with the remarks "despite repeatedly going to him and informing him, the receiver (addressee) does not meet." It is further mentioned that on receiving back the aforesaid AD letters, the attorney of the complainant visited the accused at his office on 9.12.1996 and asked him to receive the notices which he refused and on these facts complaint under Section 138 was accordingly filed.

(2.) Summoning orders were issued after recording the pre-summoning evidence. When the petitioner appeared, he filed an application stating that the complaint was time-barred. The learned MM accepted this plea and vide order dated 26.5.1997 dismissed the complaint being beyond the period of limitation. The learned MM concluded that in the present case cause of action arose on 15.12.1996, i.e. 15 days after the postal endorsement dated 30.11.1996 was received back. The complaint should have been filed upto 15.1.1997, i.e. within 30 days of the cause of action, but it was filed on 16.1.1997 and, therefore, time-barred. Submission of the complainant's counsel that notice sent to the official address of the accused was received back on 9.12.1996 and, therefore, the limitation should be counted from that date was not accepted on the ground that the complainant had the knowledge on 30.11.1996 as the letter addressed had been received back and that would be the date for reckoning the period of limitation. It was also observed that there was no reason to believe that the registered letter sent at the official address was received back on 9.12.1996 inasmuch as endorsement on that letter was one day before that of the registered letter which was sent at the residential address and was received on 30.11.1996.

(3.) The complainant challenged this order by filing revision petition and vide judgment dated 9.9.1996, this revision petition was accepted, setting aside the order of the learned MM holding that the complaint was filed within the period of limitation. As noted above, the learned MM had held that last date for filing the complaint was 15.1.1997 whereas the complaint was filed on 16.1.1997, i.e. one day after the period of limitation expired. The learned ASJ held that 15.1.1997 was not a working day but a holiday and, therefore, benefit of this had to be given to the complainant under Section 4 of the Limitation Act inasmuch as if the limitation expires on a day which happens to be Court holiday, the application could be filed on the opening day of the Court and, therefore, complaint filed on 16.1.1997 was perfectly valid. Challenging this order of the learned ASJ present petition is filed by Sh. Ashwani Kumar Julka, accused in the said complaint.