Tribhuban Narayan Pandey vs Ranjit Mondal & Anr

Tirthankar Ghosh, J

The revisional application has been preferred against the judgment and order dated 28th November, 2003 passed by the learned Additional District & Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Calcutta in Criminal Appeal No.10/2001. The criminal appeal so preferred was against Complaint Case No.1025/99 (T.R. No.166/99) under Section 138 of the Negotiable Instruments Act, 1981, wherein by the impugned judgment the Appellate Court was pleased to set aside the order of conviction and sentence dated 31st January, 2001 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta.

The genesis of the case relate to a sum of Rs. 2,00,000/- (two lakh only) being taken by the accused from the complainant on 11th June, 1998 for starting a partnership business within 6 months from the date of receipt of the said money, which the accused failed and as a result, in discharge of the existing financial liability, he issued a cheque bearing No.410813 dated 28th January, 1999 for Rs. 2,00,000/- (two lakh only) drawn on Bank of India, Moulali Branch, Calcutta. The complainant deposited the said cheque with his banker, Union Bank of India, Ezra Street Branch, Calcutta for encashment, but the said cheque was returned being dishonoured with the remarks "funds insufficient". The cheque return memo dated 29th January, 1999 was received by the complainant along with the dishonoured cheque on 30th January, 1999. The complainant thereafter, through his advocate, sent a demand notice on 3rd February, 1999 by registered post with A/D. As the complainant did not receive any A/D Card, he sent a letter on 25th February, 1999 to the Director of Calcutta G.P.O. to ascertain the fate of the demand notice. In reply, the postal authority vide letter dated 22nd March, 1999 informed the learned Lawyer of the complainant that the demand notice was delivered to the accused on 4th February, 1999. The complainant did not receive the said amount of the dishonoured cheque and as such initiated the Complaint Case No. C/1025/99.

The learned Metropolitan Magistrate on appreciation of the oral and documentary evidence adduced on behalf of the prosecution and after examination of the accused under Section 313 of Criminal Procedure Code was pleased to hold the accused guilty for commission of offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for one year and to pay compensation of Rs. 2,00,000/- (two lakh only) to the complainant.

The accused, being aggrieved by the order of conviction and sentence, preferred Criminal Appeal No. 10/2001 before the learned Chief Judge, City Sessions Court, Calcutta which finally came up for hearing before the learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Calcutta. The learned Appellate Court by a judgment and order dated 28th November, 2003 was pleased to set aside the impugned judgement dated 31st January, 2001 passed by the learned Metropolitan Magistrate, 5th Court, Calcutta and acquitted the accused from the charges level against him.

The issue which weighed with the Appellate Court for setting aside, the judgement of the learned Magistrate was whether the complaint was barred by limitation. According to the facts of the case, the legal notice was sent on 3rd February, 1999 and the same was received on 4th February, 1999 and as per information sent by the postal authority, the complaint, in this case, was filed on 31st March, 1999 which is barred by limitation as per the provisions of Sections 138 (c) and 142 (b) of the Negotiable Instruments Act, 1981 (as amended). The factual appreciation made by the Appellate Court is that it is an admitted fact on 3rd February, 1999, the complainant through his advocate sent the demand notice and according to the complainant, he came to know on the strength of the reply of the postal authority dated 22nd March, 1999 that the legal notice dated 3rd February, 1999 was received by the accused on 4th February, 1999. The receipt of information from the postal authority has been marked as Exbt.10 in this case.

In a similar fact situation, the Hon'ble Apex Court was pleased to adjudicate on the issue whether a complaint filed beyond the period of limitation or the factum of knowledge can be computed from the date when the complainant came to know regarding the receipt of the demand notice. In Subodh S. Salaskar vs. Jayprakash M. Shah & Anr. reported in (2008) 13 SCC 689 at Paragraphs 25, 26 & 28, it has been held as follows:-

"25. The complaint petition admittedly was filed on 20.04.2001. The notice having been sent on 17.01.2001, if the presumption of service of notice within a reasonable time is raised, it should be deemed to have been served at best within a period of thirty days from the date of issuance thereof, i.e., 16.02.2001. The accused was required to make payment in terms of the said notice within fifteen days thereafter, i.e., on or about 2.03.2001. The complaint petition, therefore, should have been filed by 2.04.2001.

Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act, 1963 or Section 473 of the Code of Criminal Procedure, 1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well-settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation.

Therefore, there cannot be any doubt whatsoever that the courts below committed a manifest error in applying the proviso to the fact of the instant case. If the complaint petition was barred by limitation, the learned Magistrate had no jurisdiction to take cognizance under Section 138 of the Act. The direction to issue summons on the appellant, therefore, being illegal and without jurisdiction was a nullity."

The High Court of Calcutta by following the aforesaid judgment of the Hon'ble Apex Court in Annapurna Cast Ltd. vs. Akshaya Technologies Pvt. Ltd. & Ors. reported in (2016) 4 Cal LT 428 at Paragraph 14 was pleased to observe as follows:-

"14. As mentioned earlier the present complaint was filed on 29.06.2000. The proviso of Section 142(b) was added by the amendment Act of 2002 with effect from 06.02.2003. So, when the present complaint was filed there was no scope for condonation of delay in case of any time barred complaint. Before such amendment the provision of the Section 142 was that no Court shall take cognizance of any offence punishable under Section 138 of the N. I. Act unless such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138. It has been held earlier that the present complaint was not filed within one month of the date on which the cause of action arose in the case. The question now comes for consideration is whether the inclusion of proviso to Section 142 (b) by the amendment Act of 2002 has any retrospective effect, or not. In the decision of the Gujrat High Court (supra) cited by Mr Chakraborty it has been held that the amendment of Section 142 of the N. I. Act in the year 2002 introducing the provision for condonation of delay has retrospective effect at least for the pending cases. But the Hon'ble Apex Court's view as expressed in the case of Anil Kumar Goel (supra) is completely otherwise. In para 9 of the aforesaid judgment it has been stated that there is nothing in the amendment of the Section 142 (b) of the N. I. Act by the Act 55 of 2002 to show that the same was intended to operate retrospectively. However, the point was not directly in issue in that case."

In view of the decisions referred to above, I find that the complaint is barred by limitation as the demand notice dated 3rd February, 1999 was sent on the same day, the same was received by the accused on 4th February, 1999, the complaint was filed on 31st March, 1999, the plea of the complainant that he sent a notice to the postal authorities for information regarding the service of demand notice on the accused being received on 22nd March, 1999, cannot be the starting point of the cause of action under Section 138 of the Negotiable Instruments Act, 1981. Accordingly, the cognizance which was taken by the learned Magistrate on 31st March, 1999 was bad in law and at the relevant point of time since the amended provisions relating to Section 142 (b) of the Negotiable Instruments Act, 1981 was not in existence, there was no scope for the Court to ignore the statutory period fixed under the act and take cognizance of the offence. The observations made by the learned Appellate Court while arriving at its conclusion as such do not suffer from any infirmity and accordingly, this Court finds no reason to interfere with the same.

Hence, CRR 931 of 2004 is dismissed and the judgment and order dated 28th November, 2003 passed by the learned 7th Fast Track Court in Criminal Appeal No. 10/2004 is hereby affirmed.

The department is directed to communicate this order to both the Courts below.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.