Calcutta High Court
Bhabani Shankar Agarwal vs State Of West Bengal And Anr. on 11 July, 2006
Equivalent citations: II(2007)BC81, 2006(4)CHN724, AIR 2007 (DOC) 204 (CAL.), 2007 (3) AKAR (NOC) 417 (CAL.) = 2007 (1) NIJ 163 (CAL)
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
JUDGMENT Ashim Kumar Roy, J.
1. Heard Mr. Amit Bhattacherjee, the Advocate appearing on behalf of the petitioner. None appear on behalf of the opposite parties. Affidavit of service filed in Court be kept in record.
2. The instant criminal revisional application is directed against an order dated March 17, 2005 passed by the learned Metropolitan Magistrate, Third Court, Calcutta, in connection with the Case No. C/3416 of 2002 under Section 138 of the Negotiable Instruments Act, whereby the learned Magistrate rejected the petitioner's prayer for discharge from the said case.
3. Mr. Bhattacherjee appearing on behalf of the petitioner drew my attention to paragraphs 7, 8, 9 & 10 of the petition of complaint being Annexure A to this application and submitted that although the demand notice was served upon the petitioner on October 27, 2001, but the case was filed in Court on August 13, 2002 long after expiry of the period as provided in the said Act. According to Mr. Bhattacherjee, in view of such admission of the complainant the taking cognizance was bad in law and is liable to be set aside.
4. I have carefully perused the petition of complaint and found that according to the complainant he sent the demand notice under registered post on October 22, 2001. Since the A.D. card was not returned the complainant was not in a position to know the fate of his letter and as to whether it was served upon the accused or not. Consequently, he by his letter dated 27th November, 2001 made an enquiry to the postal authority about the service of the said letter. On several occasions in writing made such enquiry. Finally the postal authority by his letter dated July 24, 2002 intimated him that the said letter has been duly delivered to the accused persons on 27th of October, 2001. After coming to know about the delivery of the said letter and not having received any payment of cheque amount from the accused persons. In the meantime, on August 13, 2002, the petitioner lodged a complaint before the learned Court below.
5. Mr. Bhattacherjee, in support of his contention relied on an unreported decision of this Hon'ble Court, viz. C.R.R. No. 2758 of 2001, S.S. Industries and Enterprises Ltd. v. Magma Leasing and Ors. I have carefully gone through the said decision and found the controversy involved in that case is identical to that of the instant case. I further found that the learned Single Judge of this Hon'ble High Court relied on a decision of Moinuddin Munshi v. Abhijit Pal reported in 2002 C.Cr. LR (Cal) 861, quash a complaint under Section 138 of the Negotiable Instruments Act, since the said complaint was filed not within 30 days after the expiry of 15 days from the date of service of the demand notice holding that the filing of the complaint was barred by statutory limitations as provided under NI Act.
6. The aforesaid unreported decision of this Hon'ble High Court in the case of S.S. Industries and Enterprises Ltd. v. Magma Leasing Ltd. and Ors. CR.R. No. 2758 of 2001 was challenged before the Hon'ble Supreme Court by the complainant party Magma Leasing Ltd., in Criminal Appeal No. 290 of 2006 when a Division Bench of the Apex Court allowed the appeal and set aside the impugned judgment of this Hon'ble High Court and remit the matter back to the Trial Court for trial of the case in accordance with law. As such ratio of the aforesaid decisions of this Hon'ble Court is no longer a good law and cannot be of any help to the petitioner.
7. In view of the above decisions of the Apex Court, this Court finds no merit in the instant criminal revisional application and accordingly the said application stand dismissed.
8. The aforesaid case is pending since 2002,1, therefore, direct the learned Magistrate to conclude the trial of the case within six months from the date of receipt of communication of this order. The department is directed to communicate this order to the learned Metropolitan Magistrate, Third Court, Calcutta positively within a week from this date.
Later:
9. If urgent xerox certified copy of this order, is applied for, the same be supplied to the applicant upon compliance of all the formalities expeditiously.