MINAKSHI SHARMA Vs. HITENDRA KUMAR SHARMA

JUDGEMENT

(1.) THIS criminal miscellaneous petition has been filed by the complainant petitioner challenging the order dated 09/10/2000 passed by the learned Additional Sessions Judge, No. 1, Jaipur City, Jaipur, whereby he has allowed the revision petition and set aside the order dated 11/08/2000 passed by the learned Magistrate. Consequently, the complaint filed by the complainant petitioner has been rejected on the ground of being barred by limitation and the non petitioner has been acquitted for the offence under S.138 of the Negotiable Instruments Act. The petitioner has prayed that the order dated 09/10/2000 passed by the learned Revisional Court may be quashed and set aside and the order passed by the learned Magistrate on 11/08/2000 be affirmed. Further, it be held that the complaint was within the period of limitation.

(2.) BRIEFLY stated, the facts of the case are that the petitioner had filed a complaint before the learned Trial Court for the offence under S.138 of the Negotiable Instruments Act, wherein it was stated that the accused non petitioner had issued a cheque to the petitioner on 15/02/1998, of Rs.1,50,000/- of S.B.B.J. Bank, Suraj Pole Branch, Jaipur. The said cheque was submitted to the Bank by the complainant petitioner on 11/06/1998 but the same was dishonoured and returned on 09/07/1998. Thereafter, a notice under the relevant law was given on 21/07/1998 and sent through registered post on 25/07/1998. The said notice was served on 28/07/1998. The non petitioner then sent a reply to the notice on 08/08/1998, which was received by the petitioner on 16/08/1998. The complaint was filed by the petitioner on 14/09/1998.

(3.) IT has been contended by the counsel for the complainant petitioner that the learned revisional Court had committed illegality in passing the order impugned for the reason that the complaint filed by the petitioner, on 14/09/1998, was very much within the period of limitation as prescribed under law. He has further submitted that the complaint was to be filed till 13/09/1998, i.e. within a period of one month from the date of cause of action but the said day was a holiday, as being Sunday. He has also submitted that 12/09/1998 was also a holiday, as it was the Second Saturday of the month. The learned counsel has submitted that the learned revisional Court has erred in not excluding the day on which the cause of action has arose in the instant case i.e. on 13/08/1998. In other words, the learned counsel for the complainant petitioner has submitted that after the notice, having been served on 28/07/1998, 15 days' period had expired on 12/08/1998 and thereby the cause of action arose on 13/08/1998. According to him, such day of cause of action is to be excluded and, therefore, the period of one month to file the complaint, as prescribed under S.142 of the Negotiable Instruments Act, is to commence from 14/08/1998 and expires on 13/09/1998, which was a Sunday. He has further submitted that the Negotiable Instruments Act provides that the time for filing complaint from the date of cause of action is one month i.e. a calendar month. In view of the aforesaid factual position, the learned counsel for the complainant petitioner has submitted that the complaint, having been filed on 14/09/1998, was very much within the limitation prescribed under the relevant law and, therefore, the impugned order is wholly illegal and deserves to be quashed and set aside.