Minakshi Sharma (Smt.) Vs. Hitendra Kumar Sharma - Court Judgment

Raghuvendra S. Ratohre, J.

1. This criminal miscellaneous petition has been filed by the complainant-petitioner challenging the order dated 09.10.2000 passed by the learned Additional Sessions Judge, No. 1, Jaipur City, Jaipur, whereby he has allowed the revision petition and set aside the order dated 11.08.2000 passed by the learned Magistrate. Consequently, the complaint filed by the complainant-petitioner has been rejected on the ground of being barred by limitation and the non-petitioner has been acquitted for the offence under Section 138 of the Negotiable Instruments Act. The petitioner has prayed that the order dated 09.10.2000 passed by the learned Revisional court may be quashed and set aside and the order passed by the learned Magistrate on 11.08.2000 be affirmed. Further, it be held that the complaint was within the period of limitation.

2. Briefly stated, the facts of the case are that the petitioner had filed a complaint before the learned trial Court for the offence under Section 138 of the Negotiable Instruments Act, wherein it was stated that the accused-non-petitioner had issued a cheque to the petitioner on 15.02.1998, of Rs. 1,50,000/- of S.B.B.J. Bank, Suraj Pole Branch, Jaipur. The said cheque was submitted to the Bank by the complainant-petitioner on 11.06.1998 but the same was dishonoured and returned on 09.07.1998. Thereafter, a notice under the relevant law was given on 21.07.1998 and sent through registered post on 25.07.1998. The said notice was served on 28.07.1998. The non-petitioner then sent a reply to the notice on 08.08.1998, which was received by the petitioner on 16.08.1998. The complaint was filed by the petitioner on 14.09.1998.

3. The accused-non-petitioner, after appearing before the trial court, filed an application on 21.07.2000 stating that the order of cognizance being illegal and the instant criminal proceedings may be dropped. The learned trial court had considered the matter and by its order dated 11.08.2000, dismissed the application of the accused-non-petitioner holding that such application was not maintainable at that stage. Being aggrieved of the order of the learned trial court, the accused-non-petitioner preferred a revision petition before the learned Sessions Judge and the same came to be decided by the Additional Sessions Judge, No. 1, Jaipur City, Jaipur by his impugned order dated 09.10.2000, whereby he had allowed the revision petition, as aforementioned.

4. It has been contended by the counsel for the complainant-petitioner that the learned court had committed illegality in passing the order impugned for the reason that the complaint filed by the petitioner, on 14.09.1998, was very much within the period of limitation as prescribed under law. He has further submitted that the complaint was to be filed till 13.09.1998, i.e. within a period of one month from the date of cause of action but the said day was a holiday, as being Sunday. He has also submitted that 12.09.1998 was also a holiday, as it was the Second Saturday of the month. The learned Counsel has submitted that the learned revisional court has erred in not excluding the day on which the cause of action has arose in the instant case i.e. on 13.08.1998. In other words, the learned Counsel for the complainant-petitioner has submitted that after the notice, having been served on 28.07.1998, 15 days' period had expired on 12.08.1998 and thereby the cause of action arose on 13.08.1998. According to him, such day of cause of action is to be excluded and, therefore, the period of one month to file the complaint, as prescribed under Section 142 of the Negotiable Instruments Act, is to commence from 14.08.1998 and expires on 13.09.1998, which a was a Sunday.

He has further submitted that the Negotiable Instruments Act provides that the time for filing complaint from the date of cause of action is one month i.e. a calendar month. In view of the aforesaid factual position, the learned Counsel for the complainant-petitioner has submitted that the complaint, having been filed on 14.09.1998, was very much within the limitation prescribed under the relevant law and, therefore, the impugned order is wholly illegal and deserves to be quashed and set aside.

5. On the other hand, the learned Counsel for the accused-non-petitioner has supported the order passed by the learned Additional Sessions Judge on 09.10.2000 and submitted that no illegality has been committed by him. He has further submitted that the computation of period of limitation, as done by the learned revisional court, is correct and no interference is called for by this Court in exercise of inherent jurisdiction.

6. I have given my thoughtfully consideration to the submissions made by the rival parties. No doubt, the question of limitation also involves the questions of facts but in the instant case, the counsel for the accused-non-petitioner could not dispute the aforementioned dates, on which the material events of the case had taken place. On having received the cheque dated 15.02.1998 the petitioner, presented the same to the Bank and it was dishonoured on 09.07.1998. Subsequent to it, the complainant-petitioner gave a notice under the Act on 21.07.1998. From the said date, a period of 15 days comes to an end on 12.08.1998. Accordingly the cause of action had accrued to the complainant-petitioner, for taking appropriate proceedings in court of law, on 13.08.1998.

Before adverting further, it would be necessary to take note of the relevant provisions of law, particularly Sections 138 and 142 of the Negotiable Instrument Act, which read 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, on 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 a term which may extend to (two year), 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 or within the period of its validity, whichever is earlier;

(b) the payee or the holder induce course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, within (thirty) days of the receipt of information by him from the bank regarding the return of the return of the cheques as unpaid; and

(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 die course of the cheque, within fifteen days of the receipt of the said notice.

142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).:

(a) no court shall take cognizance of any offence punishable Under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) Such complaint is made within one month of the date on which the cause of action arises under Clause (C) of the proviso to Section 138: ['Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]

(c) no court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.]

8. In other words, Section 138 of the Negotiable Instruments Act provides that the cheque drawn by the person is returned unpaid by the Bank then such person is deemed to have committed an offence but it would apply if the condition mentioned in Sub-clause (a), (b) & (c) are satisfied. Section 142 provides that the court shall take cognizance of any offence punishable under Section 138 on a complaint made by the payee, if it is filed within one month from the day on which the cause of action arose.

9. According to Section 3(35) of the General Causes Act, 1897, one month means a calendar month. The said provision of the Act of 1897 reads as under:

(35) 'month' shall mean a month reckoned according to the British calendar

10. The learned Counsel for the petitioner has placed reliance on a Division Bench Judgment of the Andhra Pradesh high Court in the case of In Re v. S. Mehta and Ors. reported in : AIR 1970 Andhra Pradesh 234, where it has been laid down that the period of one month means a calendar month. In the said judgment, the High Court was considering the definition, given under Section 3(35) of the General Clauses Act, for computing a period of three months under the Factories Act, 1948.

11. Further, it is a settled preposition of law that while computing the period of one month, as prescribed under Section 142(b), the day on which the cause of action arose, has to be excluded. This aspect of the matter has been thoroughly dealt with by the Hon'ble Apex Court in the case of Haru Das Gupta v. State of West Bengal : (1972) 1 SCC 639. Subsequently, the principle had been reiterated in the case of Saketh India Ltd. and Ors. v. India Securities Ltd. : (1999) 3 SCC 1 : RLW 1999(3) SC 467. In a later judgment of Jindal Steel and Power Ltd. and Anr. v. Ashoka Alloy Steel Ltd. and Ors. (2006) 9 SCC 340 : RLW 2006(3) SC 1875, the Hon'ble Apex Court has followed the same view, to exclude the day on which the cause of action had arose while counting the period of limitation for the purpose of filing a complaint under Section 138 of the Negotiable Instruments Act.

12. The Limitation Act also prescribes that the complaint be filed within one month, excluding the date on which the cause of action had arose. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

The same principle is also incorporated in Section 9 of General Clauses Act, 1897 which, inter-alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.

13. Another aspect in the present case is that the limitation for filing the complaint had expired on 13.09.1998, which was a Sunday and the same had to be excluded, in accordance to law. According to Section 57(9) of the Evidence Act, a judicial notice has to be taken by the Court in respect of holidays notified in the official Gazette. The provision of Section 57(9) of the Evidence Act reads as under:

57(9):- The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the official Gazette.

14. In other words, in the present case, 12.09.1998, being Second Saturday and 13.09.198, being Sunday, are the days which are to be excluded under the aforesaid provision of the Evidence Act. On this count also, it is amply clear that the complaint could have been filed on 14.09.1998 as the earlier two days were Gazetted Holidays. Therefore, the complaint filed by the petitioner on 14.09.1998 was within the period of limitation, as per Section 142 of the Negotiable Instruments Act.

15. In view of the aforesaid facts and circumstances and the relevant provisions of law, there remains no room of doubt that the complaint filed in the instant case was very much within limitation. The learned revisional court had committed illegality in holding that the complaint was filed after expiry of the period of limitation. Therefore, I am of the considered opinion that in order to prevent the abuse of process of the Court and to secure the ends of justice, the impugned order dated 09.10.2000 passed by the learned revisional court deserves to be quashed and set aside.

16. Consequently, this criminal miscellaneous petition is allowed and the impugned order passed by the learned revisional court on 09.10.2000 is quashed and set aside. The complaint filed by the complainant-petitioner being within the limitation, as prescribed under law, the learned trial court is hereby directed to proceed with the trial, from the stage of passing the order dated 09.10.2000.

On the request made by the parties, it is ordered that they should appear before the learned ACJM (Sr. Div.), No. 1, Jaipur City, Jaipur on 16.03.2009.