OM PRAKASH GUPTA Vs. SATYA NARAIN

JUDGEMENT

(1.) The complainant Om Prakash, partner of Rajasthan Yarn and Dan Udyog, filed criminal leave appeal to appeal under section 378 (4), Cr. P. C. against the judgment of acquittal dated 2.2.99 passed by CJM Tonk in criminal case No. 301 of 1995 whereby the accused respondent was acquitted of the offence under section 138 of the Negotiable Instruments Act. This court issued notice of the criminal leave petition to the respondent and the same was served upon him and he put in appearance through his counsel before this court. The application for criminal leave to appeal was allowed by this court on 23.5.2002 after hearing both the parties and the same was registered as Criminal Appeal No. 691 of 2002.

(2.) Brief facts giving rise to this appeal is that the complainant filed a criminal complaint under section 138 of the Negotiable instruments Act before the Judicial Magistrate Tonk wherein it was alleged that the complainant is doing a business in the name of Rajasthan Yarn and Dari Udyog. The accused gave a cheque No. 15.5.1995 for Rs. 22,000.00 to him. The complainant deposited the said cheque in his bank on 17.5.1995 which was dishonored and received back with the remarks that there is no sufficient funds. Thereafter the complainant served a notice dated 30.5.1995 on the accused through his counsel. The payment was not made and thereafter this complaint was filed, in support of its case the complainant examined himself under section 200, Cr. P. C. The trial court took cognizance of the offence under section 138 of the Negotiable Instruments Act on 8.8.1995. In support of the case the complainant examined himself as PW.1 and Shri. Chand Mal, Senior Manager of the Bank as PW.2. The necessary documentary evidence was also produced on record which were marked as Ex. I to Ex. 16 thereafter the statement of the accused under section 313, Cr. P. C. was recorded. After hearing both the sides, the trial court rejected the complaint filed beyond the period of limitation vide judgment dated 2.2.99.

(3.) Mr. Nitin Jain, learned counsel appearing for the complainant has argued that the trial court has dismissed the complaint mainly on the ground of limitation. The reasoning given by the trial court about the limitation is Illegal. As per section 142 of the Negotiable Act the complaint is required to be made within one month of the date of which the cause of action arises. The cause of action will arise when payment is not made within time granted in the notice. If the said dates are calculated then there was no scope for dismissing the complaint.