Calcutta High Court (Appellete Side)
M/S Auto Trade & Finance Corporation vs Tusher Kanti Ghosh Anr on 28 August, 2015
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Indrajit Chatterjee
C.R.A. 540 of 2011
M/s Auto Trade & Finance Corporation.
-vs.-
Tusher Kanti Ghosh Anr.
For the Appellant : Mr. Purnashis Gupta
Mr. Jayanta Mukherjee
For the Respondents : Mr. Anirban Mitra.
Mr. Prasenjit Saha.
Heard on : 25.08.2015
Judgement on : 28.08.2015
Indrajit Chatterjee, J. :
This court is hearing this appeal as against the judgement and order dated 23-03-2011 passed by the the then Additional Chief Metropolitan Magistrate, Calcutta in Complaint Case No. 965 of 2007 wherein the said learned court was pleased to acquit the accused in respect of the charge under Section 138 of the Negotiable Instrument Act. One Shyam Sunder Goyal being the constituted attorney of Arjundas Goyal Proprietor of M/s. Auto Trade Finance Corporation (hereinafter called as the complainant) filed one case against the present respondent, Tushar Kanti Ghosh under Section 138 of the N. I. Act before the said learned Additional Chief Metropolitan Magistrate, Calcutta.
In that complaint, it was urged by the said complainant that the said complainant corporation entered into a hire purchase agreement with the said accused respondent in respect of Tata Diesel Vehicle bearing No. WB-11A 1971 and in all 48 cheques were issued. Unfortunately, six cheques were dishonoured on the ground of "insufficient fund". The matter was referred to the Arbitrator and one settlement was effected and also one award was passed as per that settlement. The cheque numbers which were dishonoured were respectively 056346 dated 07.04.2007, 056347 dated 07.05.2007, 056348 dated 07.06.2007. 056349 dated 07.07.2007, 056350 dated 07.08.2007, 360881 dated 07.09.2007, each valued Rs.9100/-. Those cheques were placed on different dates and as I have already told that those were dishonoured for "insufficient fund". The complaint was filed on 12th November, 2007. Admittedly, the last day of filing of the complaint was 6th November, 2007. It may be mentioned that after the cheques were dishonoured, the complainant took different steps as contemplated under the said Act. Process was issued. The accused entered into appearance. The accused was examined under Section 251 of the Code of Criminal Procedure, to which he pleaded not guilty and claimed to be tried. The complainant examined one witness, namely, Shyam Sunder Goyal and through him the complainant proved several documentary evidence like the power of attorney, letter written by the accused respondent dated 02.01.2007, the original six cheques, return memos issued by the banker both dated 08.09.2007, demand notice dated 18.09.2007, postal receipt dated 18.09.2007 and the Acknowledgement Due Card showing receipt of the said registered letter by the accused respondent on 21.09.2007. The accused did not face the dock and also did not adduce any documentary evidence. He was examined under Section313 of the Code of Criminal Procedure and he admitted that he duly issued those cheques but those cheques were dishonoured as he did not receive any loan. He even did not deny regarding the acceptance of the demand notice and gave one evasive reply. He pleaded not guilty.
Learned trial court after hearing the argument of the parties, delivered this impugned judgement framing in all five issues. In internal page 9 of the judgement, learned trial court observed that those cheques were dishonoured on the ground of insufficiency of fund, the complainant within the stipulated period issued the notice to the accused and further that in spite of getting notice, the accused had avoided to make any payment. Thus, the learned trial court was satisfied that the complainant had complied with the provision of Section 138 of the said Act. The case ended in acquittal as the learned trial court held that the case was filed beyond the stipulated period as prescribed in Section 142(b) of the said Act.
At the time of hearing of argument, it was argued by the learned Advocate appearing on behalf of the appellant that the learned Trial Court erred in holding that the complaint was filed after the period of limitation. Learned Advocate took me to the English Calendar for the year 2007 to convince the Court that the Puja Vacation started for the Criminal Courts on 18-10-2007 and it continued upto 7th November, 2007, that 8th November, 2007 was declared as a local holiday and to that effect, he cited Memo No. 194 dated 24-01-2007 wherein the learned Chief Metropolitan Magistrate was pleased to declare that day being a local holiday, that 9th November was the day of Kalipuja, that 10th November was a Saturday and 11th November was a Sunday. Learned Advocate thus submitted that the Criminal Court practically reopened after 18-10-2007 on 12th November, 2007. Admittedly, the period of limitation actually started from 8th October, 2007 that is after expiry of one month limitation time of the service of notice. I have already told that the complaint was filed on 12th November, 2007. It is also admitted that 6th November, 2007 was the due date for filing of the complaint but that could not be done as the Court was running holidays.
Learned Counsel submitted that in view of Section 4 of the Limitation Act, Section 471 of the Cr.P.C. and Section 10 of the General Clauses Act, a complaint etc. can very well be filed on the reopening day of the court. Thus he submitted that the complaint was not at all barred by limitation.
In counter to this, Mr. Mitra, learned Advocate appearing on behalf of the private respondent, submitted that Negotiable Instrument Act is a special legislation and Section 142(b) has prescribed a specific period of limitation, i.e. one month from the date of knowledge or receipt of the notice regarding dishonour of cheque or cheques. He also took me to Section 473 of the Cr.P.C. to convince this Court that satisfaction of the court is a must if any complaint or application etc. was filed after the period of limitation. He also submitted that in four corners of the complaint nothing was mentioned that the period of limitation expired and as such leave was not prayed for. It was his submission that neither Section 4 of the Limitation Act nor Section 10 of the General Clauses Act and nor Section 471 can extend the period of limitation. He illustrated by saying that to get advantage of Section 4 of the Limitation Act, the appellant/complainant must pray in the complaint taking leave under Section 4 of the said Act. Thus, he contended that the complaint being hopelessly bared by limitation, the Trial Court rightly arrived at a just decision.
On legal point, he cited the Single Bench Decision of this Court as reported in (2009)2 C Cr L R (Cal) 914 (Ram Kishore Newatia -vs- Nicholas Piramal India Ltd. and Anr.) (2012)2 C Cr L R (Cal) 850 (A. K. Maheshwary - vs- State of West Bengal & Ors.) In reply, it was submitted by Mr. Gupta, learned Advocate appearing on behalf of the appellant, that these two decisions can be easily distinguishable on fact and cannot be made applicable in the instant case. Let me start with the law point.
As regards the decision of A. K. Maheshwary (Supra), this Court is of the opinion that the principle decided in that case cannot match with the fail of the case before the floor of this Court. In that decision, it was not a case that the complaint was filed on the reopening day and the complainant was prevented from filing the complaint as the Courts were running holidays.
Regarding the other case, i.e. Ram Kishore (Supra), this Court likes to say that in that case the learned Trial Court condoned the delay without giving an opportunity of hearing to the appellant and as such, the said order was set aside and the matter was remitted back for fresh hearing. Unfortunately, this is not the case before this Court.
Let me now say the stipulation of Section 4 of the Limitation Act which runs thus:
"4. Expiry of prescribed period when court is closed.- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation.- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day."
Thus, it is clear from this Section that in a case where the prescribed period of any suit, appeal or application had expired on a day when the court was closed then such suit, appeal or application may be instituted, preferred etc. on that day when the court reopens.
This Court is not unmindful of the fact that this Section has not dealt with as regards filing of criminal complaint or appeal but this Court can derive the principle from this section.
Let me now turn my eyes to Section 10 of the General Clauses Act which runs thus:
"10. Computation of time.- (1) where, by any (Central Act) or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:
Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies."
This Section has also not taken care of any criminal complaint or criminal appeal. This being so, Section 10 may not be made applicable in this appeal.
Now, as regards the provision of Section 471 of the Criminal Procedure Code which runs thus:
"471. Exclusion of date on which Court is closed - Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens.
Explanation - A Court shall be deemed to be closed on any day within the meaning of this section, if, during its normal working hours, it remains closed on that day."
Thus, this section has given a statutory right to a litigant approaching the criminal court to take advantage of this Section. This Court is not at one with Mr. Mitra that in this appeal the Court can take recourse to Section 473 of the Cr.P.C. That section deals with taking of cognizance with the leave of court on expiry of the period of limitation.
Thus, it is apparently clear, as I have stated earlier, while noting the argument of the Advocate appearing on behalf of the complainant that the courts were not sitting due to vacation or holidays from 18-10-2007 to 11th November, 2007. Admittedly, the complaint was filed on the very reopening day. I was told by both the learned Advocates appearing for the appellant and for the private respondent that actually, the complaint would have been filed on 6th November, 2007. 6th November, 2007 being a holiday, this appellant/complainant had every right taking advantage of Section 471 of the Cr.P.C. to file the complaint (under Section 2(d) of the Cr.P.C.) on the reopening day of the court. I reiterate on 12th November, 2007.
The Trial Court acquitted the present accused only on the ground of limitation. This Court is not going to accept the argument of Mr. Mitra that Section 142(b) of the N.I. Act has an overriding effect. There is nothing in that Section to debar a complainant from taking advantage of the provisions of the Cr.P.C.
It is true that Section 142(b) of the N.I. Act has prescribed a period of limitation on its own but that is subject to the provision of Section 471 or related section of the Criminal Procedure Code.
This being so, I am constrained to say that the learned Trial Court did not rightly answer that issue as regards limitation point and erred in calculating the days and giving proper benefit to the complainant. N.I. Act came into force to give protection to the businessmen so that they may be not defrauded by unscrupulous creditors and as such, this N.I. Act is one beneficial legislation for the trading community. The Trial Court ought to have considered this aspect favourably in favour of the complainant which she did not do.
In view of the discussion so long made, the order of the acquittal passed by the learned Trial Court is set aside. The findings of the learned Trial Court regarding the other issues are all in favour of the appellant. There is no cross appeal. Thus, this Court is satisfied that this accused/private respondent committed an offence punishable under Section 138 of the N.I. Act and he is convicted under Section 255(2) of the Cr.P.C.
The cheque amount was Rs. 54,600/- issued as back as in the year 2007 when the money value was at least 60% more, if the present price index is considered. Apart from this I am to take into consideration the harassment of the appellant both mental and financial for the act of this respondent/convict. This respondent even did not adhere to his own undertaking given in Ext.2.
It was argued on behalf of the defence that this Court cannot pronounce any sentence reversing an order of acquittal and as such the case be remanded back to the learned trial court for passing adequate sentence and compensation, if any.
I am sorry to say that this argument cannot be treated as one matured argument. I am not unmindful of the recent decision of the Apex Court as delivered in Criminal Appeal No.1743 of 2009 wherein the Apex Court while reversing one order of acquittal to an order of conviction felt it appropriate to issue notice to the said appellant on the issue of sentence. That was regarding one case under Section 302 etc. of the Ranbir Penal Code and Sections 3 & 5 of the Explosive Substances Act 1908. The case before the floor of this Court is triable as a summons case by Magistrates. There is no provision in that Chapter XX of the Cr.P.C. wherein after the order of conviction the accused convict is to be asked as to the sentence. Thus, there is no question of issuance of notice to the accused appellant to come before this Court to have his say regarding the sentence.
It may be noted that the cheque amount was Rs.54,600/- which was issued in 2007 and which was dishonoured. This Court is satisfied that substantive sentence of Rigorous Imprisonment for 10 days and compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs.1,20,000/- (one lakh twenty thousand) to be paid to the present appellant will be the adequate and proper sentence and I impose the same sentence and compensation. Such compensation must be paid within one month from the receipt of the certified copy of this order. The respondent convict may note that if this amount is not paid he will have to suffer further RI for one year.
Let a copy of this judgement be forwarded to the learned trial court for necessary action.
The respondent must surrender before the learned trial court to serve out the sentence within 21 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court. The judgment has been declared in open court.
Criminal section is directed to transmit the LCR by special messenger at the cost of the court to the learned trial court at once.
This appeal is thus allowed without any order as to costs. Urgent certified copies be supplied to the parties as per rules.
(Indrajit Chatterjee, J.)