Kerala High Court
K.V. Muhammed Kunhi vs P. Janardhanan on 23 June, 1998
Equivalent citations: 1998(2)ALT(CRI)431, [1999]95COMPCAS381(KER), 1998CRILJ4330
JUDGMENT S. Marimuthu, J.
1. This case has been filed by one Muhammed Kunhi, accused in C. C. No. 582 of 1995 on the file of the Judicial First Class Magistrate-1, Hosdurg, against one Janardhanan, the respondent herein, who is the complainant in the above-said C. C.
2. The facts as narrated by both counsel can be shortly summarised here-under : A cheque dated November 17, 1994, was drawn by the petitioner for a sum of Rs. 75,000 in favour of the respondent. The cheque was presented in the bank OH May 17, 1995, for collection. No doubt, the cheque was returned for insufficiency of funds. Apart from the above common case of both sides, learned counsel for the petitioner submitted that the cheque had been presented in the bank after the expiry of six months and, therefore, it is barred by limitation as contemplated under Section 138, proviso (a) of the Negotiable Instruments Act (hereinafter referred to as "the Act"), when the cheque is barred as per the above provision, no criminal prosecution can be launched against the petitioner. On this contention of learned counsel for the petitioner, a petition, C. M. P. No. 8609 of 1996, was moved before the magistrate to discharge the petitioner-accused as the criminal prosecution has come up before the magistrate only after the expiry of the period of limitation. The magistrate dismissed the petition on October 30, 1996, on the view that on account of the days of the British calendar month as defined in Section 3(35) of the General Clauses Act, the cheque had been presented in the bank within the time prescribed. Now, the above order of the magistrate is being challenged in this court under Section 482 of the Criminal Procedure Code. The contention of learned counsel for the respondent-complainant, on the other hand, would be that as per Section 9 of the General Clauses Act, the date of cheque, namely, November 17, 1994, must be excluded in reckoning the period of limitation. When such a calculation is adopted, the cheque has been presented in the bank within the time of six months. It is also the submission of learned counsel for the respondent that the word "month" defined in Section 3(35) of the General Clauses Act can be taken as a lunar month and not as a British calendar month. In support of this argument he also relies upon some citations which I will look into a little later.
3. Now, I will consider the point with reference to the date from which the period of limitation has to be reckoned. Section 9 of the General Clauses Act reads as follows :
"9. Commencement and termination of time.--(1) In any Central Act or regulation made after the commencement of this Act, it shall be sufficient, for the purpose of including 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'."
4. The interpretation of learned counsel for the respondent in respect of the words employed in the above Section would be that the limitation must start only from the next date of instrument. In this connection, it is also pertinent to extract hereunder Section 138 of the Act :
"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 provision of this Act, be punished with imprisonment for a term which may extend to one 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 :"
5. A comparative study of both the sections in the Act and the General Clauses Act significantly indicates that the period of limitation has to be reckoned from the date on which the cheque or instrument was drawn. The words "from" and "to" employed in Section 9 of the General Clauses Act are evidently clear that in cases where there is an ambiguity or suspicion with* reference to the date of commencement of period of limitation in any Act or special enactment, the words "from" and "to" employed in Section 9 of the General Clauses Act can be pressed into service. But in the instant case before me, Section 138, proviso (a), is involved which is so clear (as extracted above) that the date of limitation will commence only from the date found in the cheque or the instrument. This view has already been taken by the Supreme Court in Jiwan-lal Achariya v. Rameshwarlal Agarwalla, AIR 1967 SC 1118. No doubt, in that judgment, among the three judges two of them have taken the view that the period of limitation will commence from the date the instrument bears. Therefore, the majority view of the judges has become the settled proposition of law. This court in a Division Bench in Manoj K. Seth v. R. J. Fernandez [1991] 2 KLT 65 ; [1992] 73 Comp Cas 441 has relied upon the principle pronounced by the Supreme Court in Jiwanlal Achariya v. Rameshwarlal Agarwalla, AIR 1967 SC 1118. The Madras High Court in N. SivaUngam v. Chandraiyer [1994] 2 KLT (SN) 4 ; [1996] 86 Comp Cas 167 has taken the same view like this court and the Supreme Court. Therefore, now, with reference to the date from which the period of limitation has to be reckoned is so clear, namely, from the date which is found in the instrument or cheque.
6. The next question would be whether the period of six months prescribed in Section 138 (proviso (a)) of the Act is to be calculated on the basis of the lunar month or on the basis of the British calendar month. Section 3(35) of the General Clauses Act is as follows :
"3.(35) 'month1 shall mean a month reckoned according to the British calendar."
The above Section of the General Clauses Act is so crystal clear ; a month shall mean only according to the British calendar. In an earlier decision in Varna Dava Desikar v. Murugesa Mudali [1906] 29 ILR 75 (Mad) a dispute has arisen in respect of the Madras Rent Recovery Act (Act No. 8 of 1865). In Section 40 of that Act the word "month" has been used. In Section 51 of that Act it has been described that the suit should be presented within 30 days. In that juncture with regard to the presentation of the suit under the above Act a doubt arose in the minds of the judges and in considering both the sections, namely, 40 and 51, a view has been taken by the judges that a month defined under the Act consists of only 30 days. In Misri Lal v. Jwala Prasad [1962] 1 ILR 761 (All), the matter arising for consideration was with reference to a notice issued under Section 106 of the Transfer of Property Act and also with reference to the meaning of a month as defined in Section 3(35) of the General Clauses Act. The view of the judges in the above case would be that though the British calendar month is referred to in Section 3(35) of the General Clauses Act, in common parlance, a month means only a period of 30 days. Therefore, when a month is used in a statute that may be interpreted to mean a period of 30 days as held in Varna Dava Desihar v. Murugesa Mudali [1906] 29 ILR 75 (Mad). The High Court of Andhra Pradesh has taken a different view in this respect in V. S. Metha, In re, AIR 1970 AP 234. According to the Andhra Pradesh High Court the words "three months" employed in Section 106 of the Factories Act will mean only the three calendar months. In yet another earlier decision in Sashi Kumar Banerjee v. D. J. Hill, AIR 1951 Cal 316, it was held that the word "month" in its ordinary acceptance means a calendar month. On the above concurrent and dissenting views with reference to the counting of days of a month, I will examine in this case the facts and statutory laws in deciding whether the word "month" prescribed in Section 138 (proviso (a)) of the Act would mean only the British calendar month or lunar month.
7. Not only in the Act but also in other special enactments and also the Central Acts, I find only the word "month". It is not having any lateral support like calendar or lunar. If that be the situation, the immediate remedy available is, in my view, what is found in Section 3(35) of the General Clauses Act where as extracted above, the words are ambiguously used as "British calendar month". The word "month" used in the Act or some other enactments cannot ignore or eschewe or discard the words British calendar month employed in Section 3(35) of the General Clauses Act. Therefore, my view is that the month employed in the Act covers only British Calendar month and not the lunar month. In that view, I am in full agreement with the decision taken by the High Courts of Calcutta and Andhra Pradesh referred to above. When on the footing of the days covered by the British calendar month, the period of limitation in the case on hand is calculated, the cheque ought to have been presented in the bank for collection on or before May 16, 1995. But in this case, as pointed above, the cheque had been presented for collection only on May 17, 1995, which is clearly barred by limitation. Therefore, the time barred prosecution cannot be launched as has been specifically provided in Section 138 of the Act. The order of the learned magistrate passed in C. M. P. No. 8609 of 1996 that the date of the cheque must be excluded in calculating the period of limitation is erroneous and it calls for interference by this court. Accordingly, not only the order of the learned magistrate passed in the above C. M. P. is quashed but also the entire proceedings in C. C. No. 582 of 1995 stand quashed. In the result Crl. M. C. is allowed.