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2007 DIGILAW 452 (MAD)

Siva Kumar v. Natarajan

2007-02-03

P.MURGESEN

body2007
Judgment :- 1. The Criminal Revision is directed against the Judgment in C.A.No.87/2005 on the file of the Principal Sessions Judge, Trichirappalli, confirming the Judgment in C.C.No.69/2004 on the file of the learned Judicial Magistrate No.III, Trichirappalli. 2. The complainants case is briefly stated as follows:- (i) On 14.08.2003, the revision petitioner/accused borrowed a sum of Rs.1,00,000/- for his business development as a hand loan from the complainant, promising him to repay the same within three months. The petitioner/accused handed over a cheque on 20.11.2003 bearing No.0652756 dated 27.11.2003 for Rs.1,00,000/- drawn at Bank of Baroda, Lalgudi Branch in favour of the complainant. (ii) On 27.11.2003, the complainant presented the cheque for collection through his Bankers, viz., UCO Bank, Trichy Main Branch and the same was dishonoured for the reason "insufficient funds" on 2.12.2003. The respondent/complainant received intimation from the Bankers on 3.12.2003. (iii) Then, the complainant issued legal notice on 02.01.2004 calling upon the revision petitioner herein to pay the cheque amount within 15 days from the date of receipt of the notice. The petitioner/accused received the notice on 03.01.2004 and he did not send his reply or amount to the complainant. Hence the complainant has filed a petition under Section 138 of Negotiable Instruments Act before the Judicial Magistrate No.III, Tiruchirappalli. 3. Before the trial Court, P.W.1 was examined and Exs.P1 to P7 were marked. 4. Inconsideration of evidence on record, the learned Judicial Magistrate No.III, convicted the accused under Section 138 of N.I. Act and sentenced him to undergo one year simple imprisonment and to pay a fine of Rs.5,000/-, in default to undergo 6 months simple imprisonment and also to pay a sum of Rs.1,00,000/- as compensation to the complainant under Section 357(1) Cr.P.C. within a period of one month, i.e. On or before 2.06.2005. 5. Aggrieved over the Judgment of the learned Judicial Magistrate No.III, Tiruchirappalli an appeal was preferred by the revision petitioner in C.A.No.87/2005 before the Principal Sessions Judge, Trichirappalli and the same was dismissed by the learned Principal Judge, Tiruchirappalli. 6. Challenging the Judgment of the learned Principal Judge, Tiruchirappalli, the revision has been filed by the petitioner/accused. 7. The point for determination is: Whether the notice issued by the complainant is in time and the revision is sustainable? 8. 6. Challenging the Judgment of the learned Principal Judge, Tiruchirappalli, the revision has been filed by the petitioner/accused. 7. The point for determination is: Whether the notice issued by the complainant is in time and the revision is sustainable? 8. The Point: The revision petitioner/accused herein received a sum of Rs.1,00,000/-from the respondent/complainant and issued a cheque bearing No.0652756, dated 27.11.2003 for Rs.1,00,000/- drawn at Bank of Baroda, Lalgudi Branch. On 27.11.2003, the respondent presented the cheque for collection and the same was dishonoured for the reason "insufficient funds" on 2.12.2003. The respondent received intimation from the Bankers on 3.12.2003. After that, the respondent/complainant issued a legal notice through his Advocate on 2.01.2004 to the revision petitioner calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice. The revision petitioner received the notice, but he did not send any reply and he has not chosen to repay the amount. Hence a complaint was filed by the respondent/complainant under Section 138 of N.I.Act. Both the trial Court and the first appellate Court found that the revision petitioner is guilty of the offence under Section 138 of the N.I. Act. 9. Mr. E.S. Siva Shankaran, learned counsel for the petitioner/accused vehemently argued that the notice issued by the respondent/complainant herein was not in time. Hence, the case of the respondent must be rejected. Further he has submitted that he is concerned only with the limitation in issuing the notice. So, according to him, the notice was not issued within 15 days as per Section 138 of N.I.Act. The learned counsel further contended that admittedly, the respondent herein received the intimation of "insufficient funds" from the Bankers on 3.12.2003 and he sent the notice on 02.01.2004, after a lapse of 30 days. Hence the notice is invalid. 10. In support of his contention, learned counsel relied on the decision reported in 2001 (3) CTC 553 (Munoth Investments Ltd., Vs. M/s. Puttukola PropeRties Ltd. and another), and argued that the period of 15 days has to be counted from the date receipt of information regarding the return of the cheque. In the above said decision the Supreme Court held that: "5. ... ... M/s. Puttukola PropeRties Ltd. and another), and argued that the period of 15 days has to be counted from the date receipt of information regarding the return of the cheque. In the above said decision the Supreme Court held that: "5. ... ... Section 138(b) of the Act inter alia provides that the payee has to make demand for the payment of money by giving a notice "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". So fifteen days are to be counted from the receipt of information regarding the return of the cheque as unpaid. ... ..." So, the Honble Supreme Court has pointed out that the time is to be counted from the date of receipt of information regarding return of cheque as unpaid from Bank. 11. The learned counsel for the petitioner also relied on the decision reported in 2005 (1) DCR 269 (M/s. Diamond Industries Vs. M/s. Arora Steel) and argued that the starting point of limitation for issuing notice is the date of receipt of information by holder of cheque from the bank. 12. The Punjab High Court, in the above decision observed that starting point of limitation for issuing notice under Clause (b) of Section 138 of the Act should be the date of knowledge about the dishonour of the same. 13. Relying on this, learned counsel submitted that in this case, the starting point of limitation is 3.12.2003. But the respondent herein issued notice only on 2.01.2004. So he argued that, the notice is not valid as per Section 138(b) of Negotiable Instruments Act. 14. Learned counsel for the petitioner further relied on the decision reported in 2003 (1) DCR 554 (M/s. C.R. Engineering and Constructions (P) Ltd., Vs. M/s. Mesco kalinga steels ltd.) and argued that the cause of action for the complainant would commence only on receipt of the written information from the Bank. After that the statutory notice has to be issued to the drawer. In the case on hand, the cause of action commenced on 03.12.2003 on which date he received the intimation from the Bankers. 15. After that the statutory notice has to be issued to the drawer. In the case on hand, the cause of action commenced on 03.12.2003 on which date he received the intimation from the Bankers. 15. Learned counsel for the petitioner further relied on the decision reported in 2005 Crl.L.J 1534 (Mozaffar Alam Ansari VS State of Jharkhand) and submitted that the respondent/complaint issued notice much after the expiry of the statutory period. In the above cited case, the Jharkhand High Court found that the notice was issued after 15 days, much after the statutory period, and hence, quashed the complaint. 16. The submission of the learned counsel for the petitioner/accused was opposed by Mr. V. Ilanchezian, learned counsel for the respondent/complainant. He submitted that the notice issued in this case is well within the limitation period prescribed under Section 138 of N.I. Act. In support of his contention, learned counsel relied on the following decisions: i. 1999 (4) Crimes 213 (HARSUKHLAL LAXMANBHAI VAGODIA & ANOTHER Vs. STATE OF GUJARAT AND ANOTHER) 1. 1999 (3) SCC 1 (Saketh india ltd., and others Vs. India securities ltd.) 17. In 1999 (4) Crimes 213 (cited supra), the Gujarat High Court has referred Sections 9 & 10 of the General Clauses Act, which reads as follows:- "9. It may be noted that Section 138 of Negotiable Instruments Act is a Central Act and as such the provision of General Clauses Act, 1897 is applicable while constructing the provisions of the said Act. That Section 9 of General Clauses Act, 1897 reads as under:- "9. Commencement and termination of time.-(1) If any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first in a series of days of any other period of time, to use the words "from", and, for the purpose of including the last in a series of days or any other period of time, to use the words "to". 10. That according while computing the notice period as prescribed under Section 138(b) of the Negotiable Instruments Act, the day on which the information of dishonour of cheque is received has to be excluded while calculating the limitation of fifteen days or the service of notice. 10. That according while computing the notice period as prescribed under Section 138(b) of the Negotiable Instruments Act, the day on which the information of dishonour of cheque is received has to be excluded while calculating the limitation of fifteen days or the service of notice. That accordingly, the learned J.M.F.C. has held in both the maters that statutory notice served by the complainant on the present petitioners before filing the respective complaint was served within the prescribed period of fifteen days and as such the application moved on behalf of the petitioners to dismiss the complaint cannot be accepted." After considering Section 9 and 10 of the General Clauses Act, the Gujarat High Court held that notice on receipt of information regarding dishonour of cheque has to be issued within 15 days. While computing notice period, the day on which information of dishonour of cheque is received has to be excluded. In that case, notice issued on 25.07.1995 after information was received on 10.07.1995 and hence, the Gujarat High Court found that it suffers no illegality. 18. The learned counsel for the respondent argued that if the period of limitation is computed as per Section 9 of the General Clauses Act, the notice is valid. Per Contra, the learned counsel for the petitioner argued that Section 9 of the General Clauses Act will not be applicable to this case. 19. In 1999 (3) SCC 1 (cited supra), the Honble Supreme Court has observed that the 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 and also in Section 9 of the General Clauses Act 1897. 20. The Honble Supreme Court has further held that the day from which the limitation period is to be computed, has to be excluded. In that case, the notice of returning of cheque as unpaid was served on the drawer on 29.09.1995, and the fifteen days period of making of payment by the drawer under proviso (c) S.138, expired on 14.10.1995. Hence, the cause of action to file a complaint against him arose on 15.10.1995. In the above said case, it has observed that the day on that date from which the limitation period is to be computed has to be excluded. 21. Hence, the cause of action to file a complaint against him arose on 15.10.1995. In the above said case, it has observed that the day on that date from which the limitation period is to be computed has to be excluded. 21. 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 (See Goldsmiths Co. Vs. West Metroplitan Railway Co.). This rule was followed in Cartwrit Vs. Mac Cormack, wherein the fifteen days notice issued by the Insurance Company was construed by excluding the first date and in Mares Vs. Dawsan Bentley and Co. Ltd, a case claiming compensation for injuries received in the course of employment, for the purpose of computing the period of limitation, the date of the accident, being the date of the cause of action, was excluded. Thus, as a general rule the effect of defining a period, from such a day and until such a day, within which an act is to be done, is to exclude the first day and to include the last day. There is no reason as to why the aforesaid rule of construction followed consistently for so long, has not been applied here. 22. In 2001 (3) CTC 553, (cited supra), it has been pointed out that the 15 days time has to be counted from the date of receipt of information regarding return of cheque. But in 1999 (3) SCC 1 , the Honble Supreme Court has laid down the principles that the date of receipt of intimation from the bank has to be excluded, to compute the period of limitation. 23. There is no reason for not adopting the rule enunciated in 2003 (1) DCR 553 (stated supra) which is consistently followed and which is adopted in the General Clauses Act and the limitation Act. Thus as a general rule the effect of defining a 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. 24. Thus as a general rule the effect of defining a 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. 24. The intimation from the Bank was received by the complainant on 3.12.2003 and the notice was issued by the complainant on 02.01.2004, and if the day on that date of receipt of intimation viz., 3.12.2003 is excluded from computing the limitation, the notice was issued within 30 days. Hence, I am of the view, that the notice was issued in time, and there is no infirmity or illegality in the findings of the Courts below. Hence there is no reason to interfere with the Judgments of the Courts below. 25. The Criminal Revision Case is dismissed. The Judgment of the learned Principal Sessions Judge, Tiruchirappalli dated 08.11.2005 in Crl.A.No.87/2005 confirming the Judgment dated 03.05.2005 in C.C.No.69/2004 on the file of the learned Judicial Magistrate No. III, Tiruchirappalli is confirmed.