Annapurna Cast Limited vs Akshaya Technologies Pvt. Ltd. & Others

For the Appellants :- Mr. Shyamal Chakraborty, Advocate, Ms. Debarati Banerjee, Advocate.

For the Respondent :- Mr. Tirthankar Ghosh, Advocate,

Mr. Satadru Lahiri, Advocate.

Delivered on: 11.03.2016

Tapash Mookherjee J :

01. This is an appeal against a judgment and order of acquittal

passed by the learned Metropolitan Magistrate, 3rd Court, Calcutta in

complaint case No. 3000/2000 (T.R. Case No. 366/2000) dated

20.07.2011. The case in the Trial Court was a case under Section 138

of the Negotiable Instruments Act, 1881 (in short the N. I. Act). By the

aforesaid judgment and order the Trial Court acquitted all the

Respondents/Accused of the acquisition under Section 138 of the N. I.

Act.

02. The Appellant/Complainant Annapurna Cast Limited is a

company registered under the companies Act. Accused No. 1. M/s

Akshaya Technologies (P) Ltd. the Respondent No. 1 in this appeal, is

also a Company and the other three Respondents in this appeal are

the directors of the company.

03. The facts leading to the appeal in short, are as follows:-

04. The Appellant and the Respondents had business relations

between them. In usual course of such business transactions the

Appellant Company supplied some goods to the Respondent/Company

and in partial discharge of their existing liabilities the

Respondent/Company issued two cheques, dated 03.10.1999 and

04.10.1999 for Rs. 1,40,000.00 (rupees one lakh forty thousand only)

each, both drawn on Bank of India, Clubside Branch at Ranchi in

favour the Complainant/Company. Both those cheques were deposited

for encashment by the Complainant/Company in their account with

Bank of India, Lindsay Street Branch, Calcutta and both those cheques

were returned unpaid for insufficiency of fund in the account of the

Respondent/Company. Demand notice was, therefore, sent by the

Appellant/Company but in spite of such notice the

Respondent/Company did not pay the money demanded. The

Appellant/Company therefore lodged a complaint against the

Respondent/Company and its Directors under Section 138 of the N. I. Act. The Respondents appeared and contested the case on several

grounds one of which was the ground of limitation prescribed in

Section 142 (b) of the N. I. Act. Both the parties adduced oral as well

as documentary evidence. Considering the evidence thus adduced, the

Trial Court held that the Appellant's claim was barred by limitation

and the Trial Court dismissed the Appellant/Complainant's case on

such ground of limitation alone and acquitted all the respondents from

the case. Being aggrieved by and dissatisfied with such order of

acquittal the Appellant/Company preferred the present appeal.

05. The Trial Court has discussed the issue of limitation at

length and no other issue involved in the case has been discussed or

decided by the Trial Court.

06. The following dates are very much important to decide the

issue of limitation.

07. The two cheques in question were issued by the

Respondent/Company, one on 03.10.1999 and the other on

04.10.1999, both for Rs. 1,40,000.00 (rupees one lakh forty thousand

only) and according to the Appellant both the cheques had been

presented for encashment within the period of their validity and

admittedly both those cheques were returned dishonoured due to

insufficiency of fund in the account of the Respondent/Company and

the fact of such dishonour came to the knowledge of the Appellant on 06.04.2000. Thereafter, demand notices were issued by the Appellant

through registered post with A.D. and both the notices were posted on

18.04.2000. Thereafter, the A.D. Cards did not reach the Appellant in

due course and hence the Appellant wrote letters to the Postal

authority on 12.05.2000 and 17.05.2000 for information regarding the

service of those letters. The Appellant thereafter received the

information by the letter of the postal authority dated 03.06.2000,

17.06.2000 and 23.06.2000 and came to know that the demand notice

had been duly served upon the Respondent/Company on 24.04.2000.

Subsequently the Appellant filed the complaint in the Trial Court on

29.06.2000. It is, therefore, found that the complaint was not filed

within one month from the date on which cause of action arose, as

prescribed in Section 142 (b) of the N. I. Act. A question arises in this

case as to when cause of action arose?

08. Learned Advocate for the Appellant vehemently argued that

unless the drawee knows the exact date of service of the demand

notice upon the drawer of the cheques it is not possible for the

drawee to compute the period of limitation within which the

complaint has to be filed as per law. So, the period of limitation has

to be computed in the case on and from the date of knowledge of the

Appellant regarding the service of the demand notice upon the

Respondent/Company which is 23.06.2000. The complaint case was filed on 29.06.2000. So, according to Mr Chakraborty, learned

Advocate for the Appellant the complaint was filed within the period

of limitation.

09. On the other hand Mr. Ghosh, learned Advocate for the

Respondents argued that it is never the date of knowledge of the

drawee regarding the service of the demand notice upon the drawer

but the actual date of service of the demand notice upon the drawer

which is always the relevant factor to compute the period of

limitation. Mr Ghosh relied on the following judgments on the point.

(I) 1999 Supreme Court Cases (Cri) 600 (Sil Import, USA- versus -

Exim Aides Silk Exporters, Bangalore) (II) 2002 C Cr LR (Cal) 861 (Sri

Moinuddin Munshi- versus - Sri Abhijit Pal & Anr.) (III) 2001 (1) CHN

235(Darshan Singh - versus - State of W. B.) (IV) 2007 (2) CHN (Cal)

893 (Bangur Finance Ltd. - versus - Tejesh R. Ghosh ) (V) (2012) 2 C

Cr LR (Cal) 850 (A.K. Maheshwary - versus - The State of West

Bengal).

10. It is to be considered now when the cause of action accrues

in a case under Section 138 of the N. I. Act. Is it after the expiry of 15

days from the actual service of notice upon the drawer of the cheque

or after expiry of 15 days from the date of knowledge of the drawee

regarding the service of notice upon the drawer?

11. In the case of Sil Import, USA- versus - Exim Aides Silk

Exporters, Bangalore (supra) Hon'ble Supreme Court has clearly laid

down that the starting date of the accrual of cause of action in a case

under Section 138 of the N. I. Act is after the expiry of 15 days from

the receipt of the demand notice by the drawer of the cheque in

question and once the cause of action starts the offence is completed

on the failure of the drawer to pay the amount of the cheque within

15 days there from. In all the following cases (I) 2002 C Cr LR (Cal)

861 (Sri Moinuddin Munshi- versus - Sri Abhijit Pal & Anr.) (II) 2001

(1) CHN 235(Darshan Singh - versus - State of W. B.) (III) 2007 (2)

CHN (Cal) 893 (Bangur Finance Ltd. - versus - Tejesh R. Ghosh ) (IV)

(2012) 2 C Cr LR (Cal) 850 (A.K. Maheshwary - versus - The State of

West Bengal) our High Court have also expressed the same view. So,

the law is now clear that cause of action for filing a complaint for

dishonour of a cheque under Section 138 of the N. I. Act will be

reckoned immediately following the day on which the period of 15

days from the date of receipt of the notice by the drawer, expires.

12. It has been mentioned earlier that the demand notice had

been received by the Respondent/Company on 24.04.2000. The date

of knowledge of the Appellant regarding the date of service of notice

upon the drawer is immaterial. The fact being so, the present

complaint having been filed on 29.06.2000 was definitely filed after the period of limitation. Mr Chakraborty during hearing admitted that

if the date of accrual of cause of action is computed from the expiry

of 15 days after the service of notice upon the Respondent/Company

then the filing of the complaint was beyond the period of limitation.

13. The next point of argument of Mr Chakraborty is that if it is

held by the Court that the filing of the complaint is beyond the period

of limitation then the Appellant should be given an opportunity to

explain the reason for such delay under the provision in Section 142

(b) proviso. He further submitted that for such purpose the case

should be sent back to the Trial Court on remand. Mr Chakraborty has

relied on a decision of the Hon'ble Apex Court in Pawan Kumar Ralli-

versus - Maninder Singh Narula reported in 2014 (4) CHN (S.C.)

156, to substantiate his point. He has further submitted that the

provision in Section 142 (b), proviso amended the procedural law of

the Negotiable Instruments Act and hence it has a retrospective

effect. He has further added that although the aforesaid provision of

condonation of delay was not there when the present complaint was

filed but the amendment came into effect during the pendency of the

case. So, the learned Advocate for the Appellant in the Trial Court

could have prayed for the condonation of delay before the Trial Court

during the pendency of the case and if he had not done so it was his

ignorance or fault for which the Appellant should not be asked to suffer. Mr Chakraborty also contended that even though there was no

such formal prayer for condonation of delay by the Appellant then also

the Trial Court should have considered it for the sake of sustentative

justice. Mr Chakraborty also argued that Section 138 of the N. I. Act is

a benevolent law in favour of a drawee of a cheque and as such,

technicalities should always be avoided. He has cited the decision of

the Gujrat High Court, Kumudben Jayantilal Mistry - versus - State

of Gujarat & Anr., reported in 2007 CRI. L. J. 2182. He has also

cited the following decision on the point. 1. 2007 CRI. L . J. 3699

(Managing Director, Woodburn Developers and Builders Pvt. Ltd. -

versus - Smt. Debamaya Panigrahi).

14. On the other hand Mr Ghosh argued that the law of

limitation is a substantive law and as such it can never have any

retrospective effect. He also argued that the vested right of the

Respondents accruing due to the filing of the complaint after the

period of limitation would be defeated if the Appellant is given the

opportunity at this stage to explain the delay. Mr Ghosh further

submitted that the present complaint was filed on 29.06.2000 when

the provision of Section 142 (b) proviso was not there at all. So, taking

cognizance of a time barred complaint by the Trial Court was void ab-

initio and it is not at all a curable defect. He has cited a decision of the Hon'ble Apex Court on the point in Anil Kumar Goel- versus -

Kishan Chand Kaur, reported in AIR 2008 Supreme Court 899.

15. 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.

16. In the case Subodh S. Salaskar - versus - Jayprakash M.

Shah & Anr. decided on 1st August, 2008 (Criminal Appeal NO. 1190

of 2008 arising out of SLP (Cri) No. 541 of 2008), 2008 (13) SCC 689. It

has been clearly held that the amendment of Section 142 of the N. I.

Act has no retrospective effect. This judgment has been referred to in

the judgment of Pawan Kumar Ralli (supra) cited by Mr Chakraborty.

17. Ini Pawan Kumar Ralli's case (supra) cited by Mr Chakraborty

the cheques in question were issued in the year 2012 and the

complaint under Section 132 of the N. I. Act and Section 420 of the

Indian Penal Code was filed thereafter. So, the provision of

condonation of delay was there when the complaint in the said case

was filed. That apart, in para 25 of the aforesaid judgment Hon'ble

Apex Court has clearly mentioned that the said judgment has been

passed exercising the authority of the Hon'ble Apex Court under

Article 142 of the Constitution of India.

18. To conclude, learned Trial Court had taken cognizance in

the present case on the basis of a time barred complaint which was

definitely illegal. In consequence the final decision of the Trial Court finding all the Respondents not guilty of the offence under Section 138

of the N. I. Act and acquitting all the Respondents under Section 255

(1) Cr. P. C. is correct in law.

19. Except the issue of limitation the Trial Court has not delt

with any other point involved or raised in the case. So, no decision of

this Court is needed on any other point raised.

20. In view of the decisions recorded above the appeal is

dismissed. The judgment and order dated 20.07.2011 passed by the

learned Metropolitan Magistrate, 3rd Court, Calcutta in complaint case

No. 3000/2000 is hereby affirmed.

21. Urgent certified photocopy of this judgment, if applied for,

be supplied to the learned Counsels for the parties upon compliance of

all formalities.

(Tapash Mookherjee. J)