BANGUR FINANCE LIMITED Vs. TEJESH RANGAN GHOSH

JUDGEMENT

(1.) By this application dated 31.01.2995 under section 401 read with section 482 of the Cr. PC quashing is prayed for of the proceeding in Criminal Case No. C-1741 of 1996 under section 138 of the Negotiable Instruments Act pending before the learned Metropolitan Magistrate, 13th Court, Calcutta together with the challenge to the order dated 20.12.2004 passed by the said learned Magistrate rejecting the petition of the petitioners praying for their discharge from the case.

(2.) The ground for quashing of the proceeding is that although notice in terms of the provisions of the N. I. Act was received by the petitioners on 27.07.1996 the complaint was lodged with the learned Court under section 138 of the Act on 18.09.1996, i.e. beyond the period of limitation as prescribed under the provisions of the Negotiable Instruments Act which is why the proceedings at the very inception was unlawful and not maintainable and in support of the contention the petitioners placed before the learned Trial Court a decision of this Court reported in 2001(1) CHN 235. The learned Magistrate rejected the petition primarily on the ground that the question of limitation was raised only when the prosecution evidence was closed, the accused was already examined and the stage was set for defence evidence. The learned Magistrate was of the view that when this was the position and cognizance had already been taken by the learned Chief Metropolitan Magistrate and when the case should be tried on the strength of the law prevailing at the time when the offence was committed he did not think it at all expedient to make any order of discharge.

(3.) Accused No. 1 is a limited company within the meaning of Companies Act, 1956, accused No. 2 is the Director and accused No. 3 is an officer of the company and these two accused persons were at all material time and are still in charge of, and responsible to, the accused No. 1, company and for issuance of cheque. The accused No. 1, company made an Intercorporate Deposit for a sum of Rs. 200 lac with the accused company for a period of six months with interest @ 23% p.a. The accused No. 1 issued a cheque bearing No. 912108 on 22.6.96 drawn on Bank of Rajasthan, Chowringhee Branch, Calcutta in favour of the complainant company for a sum of Rs. 8,85,500/- which the complainant presented for encashment through its banker namely Punjab and Sind Bank, Chickpet, Bangalore on 11.7.1996 but the cheque was returned unpaid on 12.7.96 with the remark "Insufficient Funds". The complainant by registered letter with A/D dated 22.7.1996 demanded payment of Rs. 8,85.500/- to the accused against the aforesaid dishonoured cheque fifteen days from the receipt of the notice but the accused failed and neglected to comply with the demand letter. As the A/D card was not returned by the postal authority the complainant wrote to the Post Master, Museum Road Post Office, Bangalore on 12.8.1996 seeking for confirmation about the service of the notice on the accused No. 1/ company. The G.P.O. Bangalore by their letter dated 28.8.1996 intimated to the complainant that the notice was served upon the accused-addressee on 27.7.1996. The letter by the G.P.O. Bangalore, dated 28.8.1996 was received by the complainant on 30.8.1996. Payment having not been made in spite of notice dated 22.7.1996, the prosecution was lodged against the company and their officers under section 138 of N.I. Act.