ANKIT SARDA Vs. SUBASH AGARWAL

JUDGEMENT

(1.) By filing the application under Section 378(4) of the Code of Criminal Procedure, 1973, the Petitioner herein who was the Complainant before the learned trial Court, seeks leave to Appeal against the impugned Judgment dated 01.12.2016, of the learned Judicial Magistrate, East Sikkim at Gangtok in Private Complaint Case No. 04 of 2015 (Ankit Sarda v. Kailash Agarwal), by which, the Respondent herein was acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, "N.I. Act").

(2.) Learned Counsel for the Petitioner advanced the contention that the Petitioner is a businessman trading in Stock Exchange and had business dealings with the Respondent herein Ankit Sarda vs. Kailash Agarwal (the accused before the learned trial Court). In October, 2014, the Respondent issued a Cheque to the Petitioner of AXIS Bank, Gangtok Branch, marked as Exhibit 1. The Cheque when presented by the Petitioner for encashment before the HDFC Bank, Gangtok Branch was dishonoured with the remark "insufficient funds." The Petitioner consequently issued Legal Notice to the Respondent on 11.11.2014, demanding repayment of Rs.5,00,000/- (Rupees five lakhs) only, covered by Exhibit 1. The Respondent failed to comply with the Legal Notice of the Petitioner upon which the Petitioner filed Private Complaint Case supra on 31.12.2014. It is strenuously urged by learned Counsel for the Petitioner that the said Complaint was well within the period of limitation prescribed under Section 138(c) and Section 142(1)(b) of the N.I. Act. That, on completion of trial before the learned trial Court, the impugned Judgment was pronounced on 01.12.2016, wrongly acquitting the Respondent by overlooking the vital materials on record apart from misreading the provisions of law and erroneously calculating the period of limitation, hence the Petitioner be allowed to file his Appeal.

(3.) Vehemently resisting the stance of the Petitioner's Counsel, learned Counsel for the Respondent contended that the concerned Cheque, Exhibit 1 was issued on 10.10.2014. On 07.11.2014 the said Cheque was dishonoured on the grounds as mentioned by the Petitioner. Notice under Section 138 of the N.I. Act came to be issued on 11.11.2014. In this context, reliance was placed on Exhibit 3 which is the Notice issued to the Respondent. On the same day it was despatched by registered Ankit Sarda vs. Kailash Agarwal AD to the Respondent i.e. 11.11.2014 and the Notice came to be delivered on 12.11.2014. Admittedly no documents have been filed by either party to establish receipt of the Notice by the Respondent on 12.11.2014, however on this count the attention of this Court was drawn by learned Counsel for the Respondent to the cross-examination of the Petitioner. It was urged that in his cross-examination before the learned trial Court the Petitioner has unequivocally admitted that the Notice marked Exhibit 3 is dated 11.11.2014 and was delivered to the accused on 12.11.2014. That, on such admission of the Petitioner nothing further remains to be contested on the fact of the date of delivery of Notice. That, Section 138 of the N.I. Act requires that the payee or the holder of the cheque, as the case may be, is to make a demand for the payment of the required amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days from the receipt of information by him, from the Bank, regarding the return of the cheque as unpaid. The drawer of such cheque is to make payment of the said amount of money to the payee or, as the case may be, to the holder of the cheque, within fifteen days of the receipt of the said notice. It is admitted that the Notice, Exhibit 3 was issued within thirty days of the Cheque being dishonoured. When the accused fails to make payment within fifteen days of the receipt of Notice, then Section 142 of the N.I. Act mandates that the Complaint ought to be made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the N.I. Act. That, in the instant case since Notice was delivered on 12.11.2014, fifteen days thereof expired on 27.11.2014, hence the Complaint ought to have been filed on 28.12.2014 but came to be filed only on 31.12.2014 thereby leading to a delay of two days. That, although the delay is of two days, the proviso to Section 142(1)(b) of the N.I. Act requires that if such delay has occurred then the Complainant is required to satisfy the Court that he had sufficient cause for not making a Complaint within such period, upon which, the Court if so convinced, may take cognizance of the Complaint. That the Petitioner failed to take the required steps as mandated by law before the learned trial Court, hence his prayer deserves no consideration and his petition seeking leave to Appeal ought to be rejected. In order to fortify his submissions, reliance was placed on Keshav Chouhan v. Kiran Singh and others, 2015 4 MPLJ 230, Surekha Sandip Hajare v. Instacomp through Partner Sanjeev Shivapurkar and another, 2004 2 RCR(Cri) 408 and M/s Saketh India Ltd. v. M/s India Securities Ltd., 1999 2 RCR(Cri) 153