Kerala High Court
Krishnankutty Nair vs Ashokan on 20 December, 2004
Equivalent citations: 2005(1)ALD(CRI)37, III(2005)BC203, 2005CRILJ1095, 2005(1)KLT537, (2005) 2 ICC 397, 2005 CRI. L. J. 1095, (2005) ILR(KER) 1 KER 269, (2005) 1 KHCACJ 267 (KER), (2005) 28 ALLINDCAS 322 (KER), 2005 (1) KHCACJ 267, (2005) 2 RECCRIR 92, (2005) 2 CURCRIR 413, (2005) 2 ALLCRILR 74, (2005) 1 KER LJ 277, (2005) 1 KER LT 537, (2005) 3 BANKCAS 203, (2005) 1 BANKJ 510, (2005) 1 CIVILCOURTC 678
Author: J.B. Koshy
Bench: J.B. Koshy, K.P. Balachandran
ORDER J.B. Koshy, J.
1. What is the time limit for filing a complaint under Section 138 of the Negotiable Instruments Act is the short issue considered in this order. The learned Single Judge referred the matter to Division Bench noticing that decisions of this Court in M/s. Poornashree Agencies v. M/s. Universal Enterprises, 1995 (1) KLT 370 = 1995 (1) KLJ 248 and Adril D'Couth v. Premier Auto Electric Ltd., 1992 (2) KLJ 1051, are contrary to the observations of the Supreme Court in Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1. Before going into the disputed question, first we will refer to the relevant sections. Section 138 of the Negotiable Instruments Act reads as follows:
"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 be extended to two years), 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 in due course of the cheque ,as the case may be ,makes a demand for the payment of the said amount of money by giving anotice in writing, to the drawer of the cheque, (within fifteen days) of the receipt of information by him from the bank regarding the return of the cheque 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 due course of the cheque within fifteen days of the receipt of the said notice. .
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability".
Section 142 reads as follows:
"142. Cognizance of offence.- Not with standing anything contained in the Code of Criminal Procedure, 1973(2 of l974),-
(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 Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138)."
2. Under Section 138 of the Negotiable Instruments Act, when any cheque drawn by a person is returned by the bank unpaid for want of funds, such person shall be deemed to have committed an offence, provided conditions mentioned in clauses (a), (b) and (c) are satisfied. Clause (a) specifies that the cheque should be presented within six months from the date on which it is drawn and clause (b) states that the payee should make demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding dishonour of the cheque and under clause (c) if the drawer of such cheque fails to make the payment of the said amount of money to the payee within fifteen days of the receipt of the said notice, he commits default and cause of action arises and Court can take cognizance thereafter. Section 142(b) prescribes that within one month there from complaint has to be filed before the Magistrate Court.
3. As per Section 3(35) of the General Clauses Act, 1897, a month has to be reckoned according to British Calender. Section 3(35) reads as follows:--
"3. Definitions.--................................
(35) "month" shall mean a month reckoned according to the British calender;"
In Haru Das Gupta v. State of West Bengal, AIR 1972 SC 1293, it was held that the rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded; the effect of defining the period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day, Section 9 of the General Clauses Act as well as Section 12( 1) of the Limitation Act also affirm the same principle. In Adril D 'Couth's case (supra) a Single Judge of this Court held that cause of action arises only once and the complaint should be filed within 45 days of receipt of first notice. We are of the opinion that there is no warrant for such a view. There may be months with 28 days, 30 days or 31 days and 45 days cannot be fixed as time of limitation (15 + 30). After receipt of notice, to start cause of action, 15 days has to be expired and after expiry of 15 days only on the next day cause of action arises. Fifteen days and a month has to be counted separately and after expiry of 15 days of the notice, cause of action arises only on the next day because on the 15th day also the party could have paid the amount. Then another one month is available for filing complaint and therefore we are unable to accept the view of the learned Single Judge in Adril D 'Couth's case (supra).
4. In Poornashree Agencies' case (supra) another Single Judge of this Court held that the complaint is to be filed within one month of the date on which the cause of action arises. Therefore, in that case, it was held that 15 days notice period after receipt of notice expired on 24.6.1996 and learned Judge correctly stated that cause of action starts from 25.6.1993. According to the learned Judge, since complaint is to be filed within one month, it has to be filed on or before 24.7.1993. We are of the view that the above view is not acceptable in view of the decision of the Supreme Court in the case of Saketh India Ltd. The Supreme Court in that case very clearly held that the period of one month for filing the complaint has to be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. The Supreme Court in paragraph 7 and 8 held as follows:
"7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1)and(2)of the Limitation Act, 1963. 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. Similar provision is made in Sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of the 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".
8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last. Applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. The period of 15 days in the present case, expired on 14.10.1995. So cause of action for filing complaint would arise from 15.10.1995. Thatday(15th October) is to be excluded for counting the period of one month. Complaint is filed on 15.11.1995. The result would be that the complaint filed on 15th November is within time".
5. Learned counsel for the revision petitioner cited a decision of the Supreme Court in Sil Import, USA v. Exim Aides Silk Exporters (1999 (2) KLT 275 (SC). In that case, actually the question of limitation was not at all considered. In that particular case, the respondent sent a notice to the appellant Company by fax on 11.6.1996. The cause of action accrued on the expiry of 15 days from 11.6.1996, the date on which fax copy was sent to the appellant. Thereafter, one month's time is available for filing a complaint. But, the complaint was filed only on 8.8.1996. Therefore, there is no jurisdiction to take cognizance of the offence based on that complaint. The question whether notice sent by fax can be treated as a notice in writing or whether only notice sent by registered post alone can be accepted was disputed and discussed in that case and the Court found that sending of notice by fax. can be taken as sending of written notice. But, the question, when the period of one month expired was not considered or discussed in that case.
6. The above mentioned decisions were considered by another Single Judge of this Court in Jossy Kondody v. Chacko Thomas, 1999 (3) KLT 207, and held that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired. We agree with the above view. In the above circumstances, the decisions of the learned Single Judge of this Court in the case of Poomashree Agencies (supra) and Adril D'Couth's case (supra) are overruled.
7. As far as the facts of this case are concerned, the revision petitioner issued Ext.PI cheque dated 1.4.1993 in favour of the first respondent. When Ext. Pl cheque was presented to the bank for encashment on 5.4.1993, it was dishonoured on the same day due to insufficiency of funds in the account of the revision petitioner. On 19.4.1993, the first respondent sent a lawyer's notice to the revision petitioner demanding repayment of the amount covered by the cheque. The said notice was received by the revision petitioner on 20.4.1993. As the amount was not repaid within 15 days of receipt of the notice, the first respondent filed a complaint on 5.6.1993 and the trial court took cognizance of the complaint and found that the revision petitioner is guilty under Section 138 of the Negotiable Instruments Act. In appeal, conviction was affirmed, but sentence was modified. The only question- raised and argued in the Revision Petition is regarding the question of limitation. Hence, we are considering only that question in this Revision Petition. Here, the written notice sent regarding dishonour was received by the revision petitioner on 20.4.1993. Therefore, 15 days period will expire on 5.5.1993 and cause of action arises on 6.5.1993. Therefore, under Section 142(b) was explained by the Supreme Court in the case of Saketh India Ltd. (supra), the complaint should be filed on or before 6.6.1993. Here, the complaint was filed on 5.8.1993, within time as rightly held by the Courts below. Contention of the revision petitioner that complaint was filed beyond the time limit prescribed under the Act is therefore untenable.
Hence the Crl. R.P. is dismissed.