YASH PAL SINGH Vs. PREM CHAND VIJAY KUMAR

JUDGEMENT

(1.) THIS petition filed under Section 482 of the Code of Criminal Procedure, 19. 73 prays for quashing of complaint dated 28. 8:1995 complaining violation of Section 138 of the Negotiable instruments Act, 1881 (for brevity 'the Act' ). A further prayer has been made for quashing the order dated 29. 1. 2002 passed by the Judicial magistrate, 1st Class, Karnal, dismissing the application of the petitioners for their discharge in which they have set up the plea of limitation (order Annexure P-8 ).

(2.) BRIEF facts of the case necessary for disposal of the instant petition are that a complaint under Section 138 of the Act has been filed on 28. 8. 1995, alleging that the complainant-respondent M/s Prem Chand vijay Kumar, Commission Agent and Rice Dealers, Taraoi are dealing in paddy and rice. They had sent paddy to the accused firm of which the accused petitioners No. 1 and 2 are the partners. The total value of paddy claims to the Rs. 49,21,482. 72. It has further been asserted that the accused-petitioners had paid Rs. 44,06,429/- and the balance amount of rs. 5,15,053. 72 is outstanding against the accused-petitioners. It is further alleged that a cheque for a sum of Rs. 5,15,053. 72 vide cheque no LR 882128 dated 27. 1. 1995 was issued by the accused-petitioners in favour of the complainant-respondent drawn on Oriental Bank of commerce, Ladwa branch vide account No. 954. The cheque was duly signed by accused petitioner No. 2 and accused-petitioner No. 1 is the partner of the firm namely Sat Guru Rice Traders, New Delhi. The afore mentioned cheque was dishonoured on 3. 2. 1995 and the same was returned by the Oriental Bank of Commerce, Taraori on 6. 2. 1995 with the endorsement insufficient funds. The complainant respondent sent a notice under Section 138 of the Act on 17. 2. 1995 alongwith upc and requested the accused-petitioners to make the payment alongwith interest @ 24% p. a. within a period of 15 days. It is alleged that on the assurance given by the accused petitioners No. 1 and 2 that they would make the payment, the complainant-respondent did not file the complaint. It is claimed that a promise was held out to the complainant-respondent that the payment would be made in June 1995. However, when the payment was not made, the complainant respondent again contacted the accused petitioners. This time, they assured that the cheque be presented again and then it would be encashed Accordingly on the assurance given by the accused petitioners, the cheque was again presented on 6. 7. 1995 but the same was returned on 10. 711995 by the Oriental Bank of Commerce, taraori with the remarks 'exceeds arrangement', which in other words means insufficient funds. Thereafter, the complainant served a notice through his counsel under Section 138 of the Act and called upon the accused-petitioners to make payment within a period of 15 days from the date of receipt of notice. The accused-petitioners sent a reply through their counsel, which was received by the counsel for the complainant-respondent on 16. 8. 1995 suggesting that the period of 15 days had lapsed from the receipt of notice.

(3.) IN an application filed by the accused-petitioners, a prayer was made for their discharge. It has been asserted in the application that after the issuance of first notice on 17. 2. 1995, the limitation period was available upto 3. 4. 1995 and the complaint having been filed on 28. 8. 1995, it was barred by time. In reply to the application filed for discharge, the complainant respondent took the stand that the charge against the accused-petitioners had already been framed and it was a matter of evidence whether the complaint was time barred or within the period of limitation. It was further asserted that the accused petitioners had given assurance to the complainant that they would deposit the amount in question and if the cheque was presented again, it would be encashed. Therefore, the limitation period is required to be counted from the date of dishonour of the cheque, when it was presented second time. The learned Magistrate dismissed the application for discharge filed by the accused-petitioners by observing as under :