Mr. M.S. Tiwari Vs. Green Waves Pvt. Ltd. - Court Judgment

Excerpt:

.....state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and..........ltd. : (1999) 3 scc 1 : 1999 (ii) olr (sc) 15 wherein after taking into consideration the previous section 12(1) of the limitation act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under section 138 of the act.7. hence, i find no merit on the contention of the learned counsel for the petitioner under section 482 cr.p.c. accordingly, the crlmc stands dismissed and the interim order dated 29.4.2005 stands vacated.8. the learned s.d.j.m., bhubaneswar is directed to take up the matter and dispose of the same expeditiously by considering the fact that the matter has been substantially delayed.

Judgment:

ORDER

I. Mahanty, J.

1. Heard Mr. D. K. Mohanty, learned Counsel for the petitioner and Mr. S. P. Mishra, learned senior counsel for the Opposite Party.

2. The petitioner in this application under Section 482 Cr.P.C. has sought to challenge the order dated 20.12.2000 passed by the learned J.M.F.C, Bhubaneswar in I.C.C. No. 1850 of 2003 taking cognizance against the petitioner for the offence under Section 138 N.I. Act.

3. Sri Mohanty, learned Counsel for the petitioner, inter alia, contends that learned S.D.J.M., Bhubaneswar took cognizance even though the complaint was filed beyond the period of limitation prescribed under Section 142 of the N.I. Act. He further states that whereas the petitioner received notice from the opposite party on 26.8.2003, the cause of action starts from 11.9.2003 and the complaint was filed on 13.10.2003. Accordingly, learned Counsel for the petitioner asserts that the complainant has filed the complaint case beyond the limitation period of one month from the date of cause of action arising and the same is barred by limitation.

4. Sri S.P. Mishra, learned Senior Counsel appearing for the Opposite Party, inter alia, placed reliance on Section 142(b) of the N.I. Act which stipulates that if the complaint is filed within one month of the date on which the cause-of-action arises under clause (c) of the proviso to Section 138 N.I. Act. He asserts that the period of 30 days is to be counted from 11.9.2003 and, therefore, 30 days would lapse on 11.10.2003.

5. Accordingly, Mr. Mishra states that since 11.10.2003 was the last date for filing of the complaint and the said date was a Second Saturday on which date the Court of the learned S.D.J.M. was closed on account of holiday and 12.10.2003 being Sunday, the complaint having been filed on 13.10.2003 was clearly within the time prescribed under the N.I. Act.

6. In this respect, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Jindal Steel and Power Ltd. and Anr. v. Ashoka Alloy Steel Ltd. and Ors. (2006) 9 SCC 340 wherein the Hon'ble Supreme Court while determining the date of cause of action filed under Section 138 N.I. Act came to hold that, 'the day on which cause of action had accrued has to be excluded in computing the period of limitation, as required under Section 12(1) of the Limitation Act, 1963. In this respect, the Hon'ble Supreme Court relied upon an earlier judgment referred by it in the case of Saketh India Ltd. v. India Securities Ltd. : (1999) 3 SCC 1 : 1999 (II) OLR (SC) 15 wherein after taking into consideration the previous Section 12(1) of the Limitation Act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act.

7. Hence, I find no merit on the contention of the learned Counsel for the petitioner under Section 482 Cr.P.C. Accordingly, the CRLMC stands dismissed and the interim order dated 29.4.2005 stands vacated.

8. The learned S.D.J.M., Bhubaneswar is directed to take up the matter and dispose of the same expeditiously by considering the fact that the matter has been substantially delayed.