VISHAL DALMIA Vs. GOUR CHANDRA SARKAR

JUDGEMENT

(1.) This appeal is directed against judgment and order dtd. 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 dtd. 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.

(2.) 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 Sec. 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=28/2/97, 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.

(3.) It is seen that the learned Metropolitan Magistrate vide his judgment dated August 30, 2000 in Complaint Case C-869/1997 held that the accused in discharge of is liability issued a cheque bearing number 475603 dtd. 27/1/1997. The cheque was deposited by the petitioner but was dishonoured with the remark "insufficient fund". The dishonoured memo from the bank was received by the petitioner on 29/1/1997. The petitioner through his lawyer sent a demand notice to the accused under Sec. 138 of the Negotiable Instrument Act, 1881 on 11/2/1997 (within 15 days of receiving intimation). The accused person duly acknowledged the said demand notice on 12/2/1997 but failed to pay the amount of the dishonoured cheque.