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2008 DIGILAW 327 (JK)

Bashir Ahmad Mir v. Gh. Hassan Ganai

2008-09-03

MANSOOR AHMAD MIR

body2008
1. The petition under Section 561-A Cr. P.C. in hand, is directed against the order dated 29th of December, 2007 passed by Sessions Judge, Pulwama in a revision petition, for short the impugned order. 2. Respondent, Ghulam hassan Ganai, complainant, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, for the short the Act, before the Judicial Magistrate First Class, (Sub-Judge), Pulwama on 7th of December, 2005. The trial court has drawn the cognizance and issued process vide order dated 7th of December, 2005. 3. Petitioner-accused appeared and filed application for dropping the proceedings-came to be granted vide order dated 30th of November, 2006 and complaint came to be dismissed. Feeling aggrieved, complainant-respondent filed a revision petition before the court of Sessions Judge, Pulwama-came to be allowed vide order dated 29th of December, 2007 with the command to the trial court to try the complaint and take it to its logical conclusion. The said order is the subject matter of this petition. 4. It is alleged in the complaint that accused-Bashir Ahmad Mir, borrowed a handsome amount from the complainant in order to enable him to supply delicious fruits but the accused committed a breach and thereafter accounts came to be settled and Rs. 50,000/- were found outstanding/ liability/ debt against the accused who issued cheque No.1130238 dated 25th of April, 2005 for the said amount. Complainant deposited the cheque in Jammu & Kashmir Bank, Branch Drabgam but was returned back on 31st of October, 2005 with the report "account not renewed". Cheque and memo are appended with the complaint. A notice dated 12th November, 2005 came to be issued by the complainant to the accused about bouncing of the cheque and demand of payment of money within 15 days from the date of receipt of notice but accused failed to make payment. 5. It appears that cheque came to be issued on 25th of April, 2005 and came to be presented before the bank for encashment on 25th of October, 2005 and came to be returned along with memo as bounced on 31st October, 2005. 6. Learned counsel for the petitioner argued that the proceedings drawn, cognizance taken and process issued is abuse of the process of law on the following counts; that notice came to be issued after 15 days; and cheque came to be presented after period of six months. 7. 6. Learned counsel for the petitioner argued that the proceedings drawn, cognizance taken and process issued is abuse of the process of law on the following counts; that notice came to be issued after 15 days; and cheque came to be presented after period of six months. 7. Both the arguments of learned counsel for the petitioner are not tenable for the following reasons. It appears that legal notice came to be issued by one Reyaz Hussain Qadiri to the accused on 12th of November, 2005 and came to be posted on 14th of November, 2005. The cheque came to be returned on 31st of October, 2005 as bounced. Thus, prima facie it appears that notice came to be issued within time frame as per the mandate of Section 138 of the Act. 8. The question that cheque was not presented within six months was neither raised by the accused before the trial court nor before the revisional court. However, it is a legal issue and I deem it proper to thrash it out. It is apt to reproduce Section 138 of the Act herein:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account. However, it is a legal issue and I deem it proper to thrash it out. It is apt to reproduce Section 138 of the Act herein:- "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 provisions of this Act, be punished with imprisonment [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 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 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." 9. While going through this provision of the Act, one comes to an inescapable conclusion that the complaint under Section 138 of the Act, must contain following six ingredients: (1) Cheque is issued for discharge in whole or in part of any debt or liability; (2) Cheque is to be presented for payment within six months or within its specific period of validity whichever is earlier; (3) Returning of the cheque unpaid for want of sufficient funds; (4) The payee or holder has to give a notice of demand within 30 days from the date of receipt of information of dishonouring/ bouncing; (5) Drawer has to make payment within fifteen days from the date of receipt of the notice; and (6) Complaint is to be made within one month from the date of cause of action has arisen under clause-C of Section 138 of the Act. 10. Perusal of the complaint, cheque, memo and preliminary statements indicate prima facie that the complaint came to be presented, notice came to be issued and accused failed to make payment within time frame. 11. The only question to be determined is whether cheque came to be presented within six months from the date it was drawn. 12. Admittedly cheque was drawn on 25th of April, 2005 and came to be presented on 25th of October, 2005 as per the seal and date given on the cheque by the concerned bank. Mr. Haqani argued that six months are to be counted from the date on which it is drawn i.e. 25th of April, 2005 and cheque was to be presented before the bank before 24th of October, 2005. The cheque came to be presented after the time frame. Thus, complaint is not maintainable and entire proceedings merit to be quashed. 13. The argument of learned counsel for the petitioner is misconceived for the following reasons: 14. No doubt the cheque is to be presented within six months from the date on which it is drawn but for purposes of computing limitation, day on which it is drawn is to be excluded and the last day is to be included meaning thereby the 25th of April, 2005 is to be excluded and 25th of October, 2005 is to be included. 15. 15. My this view is fortified by the apex court judgment delivered in case titled Haru Das Gupta V. The State of West Bengal, reported as AIR 1972 SC 1293. It is apt to reproduce para No. 5 of the said judgment herein: "5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. 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 Company v. West Metropolitan Railway Company, (1904)1 KB 1). This rule was followed in Cartwright v. Mac Cormack, (1963) 1 All ER 11 at p.13, where the expression "fifteen days from the date of commencement of the policy" in a cover note issued by an insurance company was construed as excluding the first date and the cover note to commence at midnight of that day, and also in Marren v. Dawson Bentley & Co. Ltd. (1961) 2 QB 135, a case for compensation for injuries received in the course of employment, where for purposes of computing the period of limitation the date of the accident, being the date of the cause of action, was excluded. (See also Stewart v. Chapman, (1951) 2 KB 792 and In re North. Ex parte Lasluck, (1895) 2 QB 264). 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. (see Halsburys Laws of England. (3rd Ed.) Vol.37, pp.92 and 95). There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here." 16. The Apex court has again taken the same view in case titled M/s Saketh India Ltd, And others Vs. M/s India Securities Ltd., reported as AIR 1999 SC 1090. It is apt to reproduce para-8 of the said judgment herein: "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. M/s India Securities Ltd., reported as AIR 1999 SC 1090. It is apt to reproduce para-8 of the said judgment herein: "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. Period of 15 days, in the present case, expired on 14th October, 1995. So cause of action for filing complaint would arise from 15th October, 1995. That day (15th October) is to be excluded for counting the period of one month. Complaint is filed on 15th November, 1995. The result would be that the complaint filed on 15th November is within time." 17. Applying the test to the instant case, the date of drawn of the cheque i.e. 25th of April, 2005 is to be excluded for counting period of limitation and 25th October, 2005 is to be included. Thus, cheque came to be presented within six months. 18. In the given circumstances of the case, the impugned order passed by the learned Sessions Judge, Pulwama, is well reasoned, needs no interference. Accordingly this petition is dismissed along with all connected CMPs. Interim direction, if any, shall stand vacated. Parties are directed to cause presence before the trial court on 25th day of August, 2008. Registry to send down the record along with a copy of this judgment.