Poornasree Agencies v. Universal Enterprises — 1995 DIGILAW 7 (KER)

Judgment :- Petitioner is the accused in S.T. No. 2077 of 1993 of the Additional Chief Judicial Magistrate Court, Ernakulam. In the complaint filed by the first respondent commission of an offence under Section 138 of the Negotiable Instruments Act had been alleged against him who is the proprietor of M/s. Poornasree Agencies. Towards the debt that was allegedly due a cheque dated 7-2-1993 for Rs. 5,011.50 was issued by the petitioner to the respondent on 7-2-1993. It was presented for collection through State Bank of India, Perumanoor branch on 14-5-1993 and on 2-6-1993 he had information from the bank that the cheque had been dishonoured for want of sufficient funds. Thereupon the first respondent sent a demand notice dated 7-6-1993 which the petitioner received on 9-6-1993, but failed to make the payment. Thereupon Annexure-A complaint was filed on 26-7-1993 for offence under Section 138 of the Negotiable Instruments Act. Pursuant to the summons petitioner appeared and he filed M.P. 9020 of 1993, copy of which is Annex. B raising a preliminary objection as to the maintainability of the complaint. The Court below however by the impugned order dismissed the petition by Annexure C order. It is submitted that the order is untenable, that the complaint barred by limitation, that the proceedings in the case are unsustainable and have to be quashed. 2. Heard counsel for the petitioner and the respondents. 3. The Court below however by the impugned order dismissed the petition by Annexure C order. It is submitted that the order is untenable, that the complaint barred by limitation, that the proceedings in the case are unsustainable and have to be quashed. 2. Heard counsel for the petitioner and the respondents. 3. Under Section 142(b) of the Negotiable Instruments Act a complaint under Section 142(1)(a) has to be made within one month of the date on which the cause of action arises under Clause (c) of proviso to Section 138, to apply which, under Clause (a) of the proviso the cheque "has been presented to the bank within a period of six months from the date on which it is drawn within the period of its validity whichever is earlier," and under Clause (b) : "the payee or the holder in due course of the cheque as the case may be makes a demand for 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 the return of the cheque as unpaid;" and under Clause (c) : "the drawer of such cheque fails to make the payment of the said amount of the money to the payee or, as the case may be, to the holder in due course of cheque, within fifteen days of the receipt of the said notice." 4. In the complaint it was stated that notice was received by the petitioner on 9-6-1993 and therefore payment had to be made within 15 days thereof. Obviously the 15 days will commence from 10-6-1993 and would expire on 24-6-1993. Complaint has to be filed within one month of the date on which the cause of action arose. Here in this case the cause of action had arisen on and after 24-6-1993 and the complaint has therefore to be filed on or before 24-7-1993. The complaint was however filed on 26-7-1993 stating that the last day for filing it, which according to the respondent was 25-7-1993, was a holiday and therefore it could be legally filed on the next working day i.e. 26-7-93. I am unable to agree to the correctness of this contention. The complaint was however filed on 26-7-1993 stating that the last day for filing it, which according to the respondent was 25-7-1993, was a holiday and therefore it could be legally filed on the next working day i.e. 26-7-93. I am unable to agree to the correctness of this contention. The complaint in my view to have been filed on or before 24-7-93 and since it was not so filed, but was filed on 26-7-93, it was barred by limitation. 5. Petitioner's counsel relied upon a decision of the House of Lords in Dodds v. Walker, 1981 (1) Weekly Law Reports, 1027, to submit that the complaint filed was within time. That was a case decided under the Landlord and Tenant Act 1954, whereunder Section 29(3) : "No application (for a new tenancy) under Section 24(1) of this Act shall be entertained unless it is made not less than two or more than four months after the giving of the landlord's notice under Section 25 of the Act." On September, 30, the landlord gave notice to the tenant to determine his tenancy of business premises. Under Section 29(3) of the Act the tenant had "four months after the giving of the landlord's notice" to apply to the county Court for a new tenancy. The tenant applied on January 31, 1979. The application was dismissed by the Registrar on the basis that it was out of time and on appeal it was held that computing the four months 'period under Section 29(3), the day the landlord gave notice was to be excluded but, notwithstanding that September was a 30 day month, the period elapsed on the corresponding day in the fourth month, namely January 30, and therefore the tenant's application made on the last day of January was made one day too late. The Court of Appeal affirmed the decision. The Court of Appeal affirmed the decision. On further appeal by the tenant, which was dismissed, it was held that : "in construing Section 29(3) of the Act the corresponding date rule applied, so that in calculating the period which had elapsed after the giving of the landlord 'notice and excluding that day, the relevant period was the specified number of months thereafter which ended on the corresponding day of the appropriate subsequent month, and accordingly the tenant had made his application out of time." In may view, the decision cannot be pressed into service to the facts of this case. It has not been shown that the corresponding date rule is at all applicable here and at any rate, no precedent was cited to show that it had be applied by any Courts of this land. 6. The period of limitation as defined under (j) of Section 2 of the Limitation Act "means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act." But then in view of the special provisions in the Negotiable Instruments Act, the period prescribed there alone can be taken into account for the purpose of limitation and that is, that a complaint has to be filed within one month of the date when the cause of action had accrued. As stated already, petitioner had received the notice on 9-6-1993. That date has to be excluded and payment has to be made within 15 days from 10-6-1993 and that would expire on 24-6-1993. A complaint for an offence under Section 138 of the Negotiable Instruments Act can be made within one month of the date on which the cause of action had arisen. Obviously it had started from 26-6-1993 and therefore the complaint ought to have been filed before 24-7-1993, which alone would have been within the time. The contention that applying the corresponding "date rule" complaint need have been filed only on 25-7-1993, which was however a holiday, and it having been filed on 26-7-1993 was in time, is unacceptable. 7. The decision reported, in Vishnu Bhatta Subrava Bhatta v. Domakkee, AIR 1958 Kerala 326, is on point. The contention that applying the corresponding "date rule" complaint need have been filed only on 25-7-1993, which was however a holiday, and it having been filed on 26-7-1993 was in time, is unacceptable. 7. The decision reported, in Vishnu Bhatta Subrava Bhatta v. Domakkee, AIR 1958 Kerala 326, is on point. The facts in that case are these : "The plaintiffs brought a suit on 26-3-1951 for recovery of amount due on a mortgage bond dated 27-3-1909 executed in their favour by the predecessor of some of the defendants. Though the suit document was executed only on 27-3-1909 the mortgage money was to bear interest from the first day of Saumya year (viz. 1st of Chitra Suddha of Saumya year) corresponding to 22-3-1909 of the Engling Calendar and the interest was payable every year on the last day of a year according to the Kanarese calendar, that is, 30th Phalguna of every year. The mortgage money was not returnable for twenty years, but the repayment had to be made on the 30th of Phalguna Bahula of the year coming at the end of the period of thirty years from the beginning of the Saumya year. 30th Phalguna Bahula coming after thirty years from the 1st of Chitra Suddha of Saumya year fell on 21-3-1939. The question was whether the suit filed on 26-3-1951 was within limitation prescribed by Art. 132 Limitation Act when 23rd, and 25th March, 1951 were holdiays and the Court was closed on these dates. Held that the argument that the suit if instituted on 23-3-1951 would have been in time and that on account of the intervention of three holidays, the present suit was not hit by the twelve years' rule of limitation could not be accepted. Thirty years from the beginning of Saumya year (22-3-1909) expired on 22nd March, 1939 and twelve years from 23rd March, 1939 (that is, excluding the date on which the debt became payable (expired on 22nd March, 1951. The suit should then have been brought on 22nd March, 1951 to be within the period of "twelve years from the time the money sued for became due," prescribed by Art. 132, Limitation Act 1908. To hold that the suit if instituted on 23rd March, 1951 would have been in time would be to allow twelve years plus one day as the period within which the suit should be brought. To hold that the suit if instituted on 23rd March, 1951 would have been in time would be to allow twelve years plus one day as the period within which the suit should be brought. The period of twelve years ended at mid-night on 22-3-1951." In paragraph 143 of Halsubury's Laws of England Volume 37 (Third Edition) it has been observed that : "When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts, save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month the period expires at the end of the later month." In my view, Annexure A complaint was filed beyond time and therefore cognizance was barred. The proceedings in S.T. No. 2077 of 1993, in my view, are unsustainable and are quashed as prayed for. The Crl. M.C. is allowed as above. Petition allowed.