Judgment · High Court · 2026

First, that the complaint petition was filed after an unexplained delay of 28 days (contrary to the 4 days claimed by the complainant), and the Learned Magistrate took cognizance mechanically without formally condoning the delay under the proviso to Section 142(b) of the Negotiable Instruments Act, rendering the cognizance bad in law. Second, that in terms of the written agreement dated August 17, 2015, if the petitioner failed to pay the money by August 31, 2016, a fresh timeframe was to be structured in the presence of witnesses. By presenting the cheque without such discussion, the complainant violated the agreement, and thus, no legally enforceable debt or liability existed at the time of presentation. 4 Third, that the complainant charged interest at an usurious rate of 12% per month without possessing a valid money-lending license under the Bengal Money Lenders Act, 1940. It is contended that under Section 23 of the Contract Act, such transaction is void and illegal, which completely erases the element of "legally enforceable debt" required under Section 138 of the N.I. Act.

10. I have carefully perused the petition of complaint, the application under Section 5 of the Limitation Act, the written agreement, and the impugned order taking cognizance.

11. Addressing the first contention regarding limitation and the condonation of delay: Under the proviso to Section 142(1)(b) of the Negotiable Instruments Act, a complaint may be cognized after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making the complaint within such period.

12. In the present case, the statutory demand notice was refused by the petitioner on September 22, 2016. Concurrently, another notice sent to the petitioner's residential address was returned with the postal endorsement "Not Claimed" (N/C) on October 24, 2016, upon the reopening of the courts after the Puja Vacation, which lasted from October 06, 2016, to October 23, 2016.

13. The complainant filed the complaint on October 28, 2016, along with an explicit application under Section 5 of the Limitation Act explaining the minor delay of four days from the date of the return of the final notice. While it is true that the Learned Magistrate's order taking cognizance does not elaborately discuss 5 the condonation of delay, the very act of registering the complaint as a criminal case and issuing process after the filing of an application under Section 5 of the Limitation Act implies that the Court, upon perusing the uncontroverted explanations of the Puja holidays and postal return dates, accepted the cause as sufficient. Such marginal delay of four days, arising out of a court vacation and late postal returns, does not strike at the root of the jurisdiction so as to render the entire proceeding void at the threshold.

14. The second contention, regarding the clause in the agreement to frame a "fresh timeframe" in the event of default, is a contractual defense.

15. It is settled law that a "security cheque" does not lose its character as a negotiable instrument. Once a cheque is issued and signed by the drawer, the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act arise in favour of the holder, shifting the burden onto the accused to show that the cheque was not issued in discharge of a legally enforceable debt.

16. Whether the agreement dated August 17, 2015, altered the liability, or whether the complainant was precluded presenting the cheque, are factual defenses. The petitioner's assertion that there was no existing debt or liability must be established through evidence during the trial and cannot be adjudicated in a summary manner under Section 482 of the Cr.P.C.

17. Finally, the argument touching upon the Bengal Money Lenders 6 Act, 1940, and the lack of a money-lending license is entirely misplaced in a proceeding under Section 138 of the N.I. Act. The bar under the Bengal Money Lenders Act relates to the institution of a civil suit by an unlicensed money lender for the recovery of money.

18. A criminal prosecution under Section 138 of the N.I. Act is not a suit for the recovery of money, but a penal proceeding to punish the dishonest drawer of a bounced cheque. An isolated transaction of a friendly or accommodation loan, even if executed with an interest clause, does not automatically categorise the complainant as a professional "money-lender" carrying on the business of money-lending within the meaning of the 1940 Act. This is a triable issue of fact which can only be determined upon appreciation of evidence in the course of trial.

19. In view of the specific allegations, the presentation of the cheque, its return with the endorsement "Payment stopped by Drawer", and the subsequent failure to comply with the demand notice, I am of the opinion that a prima facie case under Section 138 of the N.I. Act is clearly made out. I do not find any perversity, patent illegality, or jurisdictional error impugned proceedings which would require the intervention of this Court. The allegations raised by the petitioner must be decided by the Trial Court by recording evidence.

20. For the reasons discussed above, I do not find any merit in this revisional application.

21. C.R.R. No. 3556 of 2017 is hereby dismissed.

22. All connected applications, if any, stand disposed of. 7

23. The interim order of stay granted earlier, if any, stands vacated.

24. The Learned Trial Court is directed to proceed with the trial with utmost expedition and bring the same to its logical conclusion in accordance with law, without being influenced by any observations made herein, which are strictly confined to the disposal of this revisional application.

25. Let a copy of this order be communicated to the Learned Trial Court immediately for information and swift action.

26. Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Uday Kumar, J.)