ARUNODOYA PLANTATIONS LTD Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS application under section 482 Cr PC has been filed for quashing the proceedings in case No. C-5341 of 2001 under section 138 of the Negotiable Instruments Act pending before the court of learned 5th Metropolitan Magistrate, Calcutta.

(2.) THE case under section 138 of the Negotiable Instrument Act was filed before the learned Magistrate by the O. P. No. 2 herein against the petitioners herein alleging that accused No. 2 at the time of the commission of the offence was in-charge of and was responsible to the accused No. 1 Company for the conduct of the business. In the discharge of its liability towards the complainant the accused Company issued two cheques bearing No. 070561 dated 15. 6. 2001 amounting to Rs. 3,00,000/- and cheque No. 070568 dated 31. 7. 2001 amounting to Rs. 5,00,000/-drawn on UCO Bank, India Exchange place, Kolkata. Within the period of validity of the said cheques, the complainant presented the same for payment through its banker, State Bank of India, Overseas Branch at la Martiniere, Kolkata-700017. On 13. 08. 2001 the complainant received intimation from its banker that the aforesaid cheques issued by accused no. 1 has been returned unpaid with the remark 'insufficient fund'. By a notice dated 18. 8. 2001 sent by registered post with acknowledgement due the complainant made the demand to the accused for payment in respect of the said amount of the cheques. The said notice was served upon the accused on 27. 08. 2001. The acknowledgement card was received by the learned Advocate of the complainant on 10. 09. 2001. In spite of being served with notice the accused failed and neglected to pay the amount of cheques to the complainant within the stipulated period under section 138 of the Negotiable Instrument Act. For the said reasons, the complaint under section 138/141 of the Negotiable instrument Act has been filed before the learned Magistrate.

(3.) LEARNED counsel appearing on behalf of the petitioners herein submits that the accused persons received notice on 27. 8. 2001 and the cause of action arose on 11. 9. 2001 and, therefore, the complainant ought to have filed the complaint by 11. 10. 2001. It is submitted that the learned Chief Metropolitan Magistrate has submitted a report as per order of this Court dated 15. 6. 2007 stating that the petition of complaint was filed before the learned Court below on 19. 10. 200 i. e. eight days after the expiry of the period of limitation. The learned Counsel further submits that the amendment of section 142 (b) of the Act came into force after the filing of the petition of complaint and, therefore, the said amendment would not be applicable in the instant case. It is contended that although it has been held in the decision reported in 2006 (2) India criminal Law Reporter 300 [r. K. Chawla and Anr. v. M/s. Goa Antibiotic. and Pharmaceutical. Ltd. and Anr. ] that the amendment will apply in pending cases, that would not come in the aid of the complainant, in as much as, at the time of filing of the petition of complaint no application for condonation of delay was filed along with the petition of complaint. It is submitted that the petition of complaint filed before the learned Court below was time barred and the learned Magistrate was not justified in issuing process.