Santosh vs Gupta Brass Parts Co.
2004 Latest Caselaw 173 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the order of the Metropolitan Magistrate dated 4th January, 2003, whereby the learned Metropolitan Magistrate has held that the period of 15 days after receipt of notice of demand is to be calculated with respect to the payment received by the holder of the cheque.

2. The facts of the case are that the notice of demand dated 20th July, 2001 was dispatched by the counsel of the complainant on the same date and as per the A.D. Card Ex.CW1/7, it was received by the accused on 23rd July, 2001. The accused prepared a demand draft on 6th August, 2001 and put into the post along with covering letter dated 13th August, 2001, which was then received by the complainant on 17th August, 2001.

3. Counsel for the petitioner argues that the interpretation by the learned Magistrate is faulty for in the event payment is made by demand draft or cheque, the date on the instrument of repayment is relevant and not the date of receipt of payment by the holder of the cheque. That is to say, if the cheque or demand draft on account of discharge of notice of demand is dated within 15 days of receipt of notice of demand, limitation would stop running.

4. Heard counsel for the petitioner. The submissions made by counsel for petitioner are not acceptable. In section 138 of the Negotiable Instruments Act, the term "within fifteen days of receipt of notice of demand" would mean that the payment must be received by the holder of the instrument within fifteen days of receipt of the demand of notice by the defaulter. If however the payment is received subsequent thereto, complaint can be filed. The date on the cheque or demand draft paid in response to notice of demand is not the determining factor while calculating limitation.

5. In the present case the draft was received after 15 days of receipt of notice of demand and was encashed. That itself does not affect the limitation period, which starts running on the receipt of notice of demand. Therefore, the complainant was well within his right to file and maintain complaint under Section 138 of the Negotiable Instruments Act.

6. In this view of the matter, I am satisfied that the order under challenge suffers from no infirmity, perversity, impropriety, illegality or jurisdictional error.

7. Crl.Rev.P. 217/2003 and Crl.M.A. 372/2003 are dismissed.