TaxTMI 
TaxTMI 
2022 (4) TMI 756
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....rding sentence to convict petitioner Sri Rakhal Mallik to suffer S.I. for 1(one) year and pay a fine of Rs. 22,00,000/- in default to suffer SI for 6(six) months. [3] The petitioner before this Court is a defaulter of cheque. The cheque issued by him was dishonoured. The cheque amount is Rs. 11,00,000/- and the Court below has passed the order of conviction with a fine of Rs. 22,00,000/-. [4] In gist, the case of the prosecution as it appears from the copy of the judgment of learned trial Court is that, complainant Sri Umesh Majumder render service by providing materials, goods, i.e. brick, chips, cement, etc. and labourers to the accused-petitioner for execution of the work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block and accordingly the accused-petitioner has been liable to pay Rs. 11,00,000/- to the complainant as the cost of said materials, goods and labourers, etc. and in discharge of his said liability accused-petitioner issued a cheque vide No. 623748, dated 15.04.2016 of Rs. 11,00,000/- drawn on the bank account of accused-petitioner vide Account No. 0261010107800 lying in the United Bank of India, Belonia Branch. On 03.06.2016 th....
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.... Judicial Magistrate, the learned Sessions Court has observed as under: "So, in the totality of the evidence and materials available on record I find no impropriety in the judgment of learned trial Court justifying any interference from this Court. I find no merit in the appeal. Thus, the appeal is dismissed. The convict-petitioner is hereby directed to surrender before learned trial Court within one month from today to undergo the sentence and to pay the fine amount." [8] Being aggrieved by and dissatisfied with the impugned judgment and order dated 01.03.2021 passed by the learned Sessions Judge, South Tripura, Belonia upholding the judgment and sentence dated 18.06.2019 awarded by the learned CJM, Belonia, South Tripura, the present petition has been preferred by the petitioner. [9] In support of the case of the petitioner Mr. P. K. Pal, learned counsel appearing for the petitioner has submitted that both the courts below have erred both on points of law and facts in awarding the sentence to the accused petitioner. He has further submitted that the learned Sessions Judge ought to have applied his mind on the records to ascertain as to whether the learned trial Cou....
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....o have considered the fact that the complainant (PW-1) during cross examination on the question of liabilities of the accused, the complainant deposed that "the accused was indebted me for the alleged amount as I have performed some Govt. construction works on his behalf" (emphasis added). This statement of the complainant on deposition in entirety varies from the statement made in the complaint petition as the complainant failed to answer to the specific question on the existence of the consideration and the actual fact behind the quantum of liability which were the probable defence of the accused and the depositions of the PW-1 shades doubt as to whether he was the supplier of materials or, he had actually performed the work on behalf of the accused. Hence, the burden of proof shifted on the complainant remained disproved and thereby, the preponderance of probabilities is in favour of the accused. [14] The Appellate Court ought to have been come to the conclusion that the proceeding before the learned Trial Court was vitiated by the non-affording the natural justice to the accused as there was no specific documentary evidence as regards the probabilities as to when and how the....
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....espite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice." [18] In the light of the above submissions and evidence on record, let me discuss whether learned trial Court committed any wrong in convicting the petitioner. The complainant Sri Umesh Majumder was examined himself as PW-1, and according to him, he render service by providing brick, chips, cement, etc. and labourers to the accused-petitioner for execution of the work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block and accordingly the accused-petitioner has been liable to pay Rs. 11,00,000/- to him as the cost of said materials, goods and labourers, etc. and in discharge of his said liability accused-petitioner issued a cheque vide No. 623748, dated 15.04.2016 of Rs. 11,00,000/- drawn on the bank account of accused-petitioner vide Account No. 0261010107800 lying in the United Bank of India, Belonia Branch. On 03.06.2016 he presented the said cheque to his banker, i.e. the State Bank of India, Belonia Branch through his account vide Account No. 30791798956 for collection of the afor....
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.... before deposition of the cheque, the accused-petitioner requested him to submit the cheque after some time. [22] PW-2, Sri Sujit Das in his examination-in-chief has stated that he worked as a mason in the contrary work of road construction under PMGSY within the jurisdiction of Hrishyamukh R.D. Block under the supervision of PW-1 as the accused-petitioner engaged him to supervise his said contrary work and PW-1 rendered service by providing brick chips, sand, cement and labourers to the petitioner for execution of work and in discharge of the said liabilities the petitioner issued a cheque to PW-1 and subsequently PW-1 deposited the said cheque for encashment and he heard from PW-1 that the said cheque was dishonoured. [23] PW-3, Sri Khokan Ch. Bhowmik in his examination-inchief also stated that he knows the petitioner since he worked few contrary works with him as a partner and also know the complainant. He also stated that the petitioner executed the construction work of roads construction (under PMGSY) within the jurisdiction of Hrishyamukh R.D. Block and in executing the said work the petitioner engaged PW-1 for providing brick chips, sand, cement etc. and labourers incl....
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....thin 15 days of the receipt of the Legal Notice for which the complainant has filed the case. So, it is proved that the cheque is presented against a legally recoverable liability in favour of the complainant and the cheque was dishonoured for the reason of insufficient fund, the cheque is drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice. [27] The only argument of the counsel appearing for the petitioner- who has defaulted the payment of the cheque amount is that the case is filed after completing of 30 days and there is no application of limitation Act of Section-138 and thus the Courts below ought to have rejected the complaint but instead, has entertained the complaint and allowed the petition and convicted the petitioner herein. [28] Learned counsel appearing for the respondent has submitted that the complaint is filed within 30 days and the question of 1 (one) day delay is not there and the order passed by the trial Court in entertaining and imposing the fine and conviction is correct and prayed to dismiss the case. [29] Learned counsel appearing for the respondent has submitted t....
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....ismiss the present petition. [33] For the purpose of deciding this case, it is relevant to extract the legal provisions involved which are as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account. "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless" (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn....
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.... section shall apply unless: (a)............... (b)................ (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. [34] Section-142 of NI Act has already been discussed supra. The Apex Court in Econ Antri Limited v. Rom Industries Limited and Another, reported in (2014) 11 SCC 769, has held thus: (c) of the proviso to Section 138 of the NI Act?" The same question was reframed in simpler language as under: "Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?" "9. In Saketh cheques dated 15/3/1995 and 16/3/1995 issued by the accused therein bounced when presented for encashment. Notices were served on the accused on 29/9/1995. As per proviso (c) to Section 138 of the NI Act, the accused were required to make the payment of the said amount within 15 days of the receipt of the notice i.e. on or before 14/10/1995. The accused faile....
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....bury's laws of England[19]. It is necessary to quote those passages: "207. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This rule is especially reasonable in the case in which that person is not necessarily cognisant of the act or event; and further in support of it there is the consideration that in case the period allowed was one day only, the consequence of including that day would be to reduce to a few hours or minutes the time within which the person affected should take action. 208. In view of these considerations the general rule is that, as well in cases where the limitation of time is imposed by the act of a party as in those where it is imposed by statute, the day from which the time begins to run is excluded; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation." Reliance was also placed in this judgment on Radcliffe v. Bartholomew[20]. In that ....
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....r section 138 (c) accused were required to make payment of the said amount of money within 15 days. The accused failed to pay the said amount, hence the cause of action for filing the complaint arose from 15th October, 1995. Complaints were filed on 15th November, 1995. Therefore, it is contended that complaints were filed beyond time. Accused petitioners approached the High Court by filing petition under Section 482 of the Criminal Procedure Code for quashing and setting aside the process issued by the XI Additional Chief Metropolitan Magistrate, Bangalore. Those petitions were rejected by the High Court by common order and Judgment dated 25th September, 1997. Hence, these appeals. 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last.. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the no....
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....eted, but if after that time a person who has done work for or in connection with the provision of the dwelling does further work to rectify the work he has already done, any cause of action in respect of that further work is deemed to have accrued at the time when the further work was finished. The running of time when there are recurring causes of action is considered subsequently, and the date from which time runs is respect of particular cause of action is considered further subsequently in relation to the causes of action in question. Period within which an act must be done 336. Exclusion of first day. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This general rule applies irrespective of whether the limitation of time is imposed by the act of a party or by statute. Thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation. So, also, where a sta....