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2011 DIGILAW 349 (BOM)

M/s. Airsonic Travels Pvt. Ltd. v. Shri Prem Motiram Jhangiani Adult

2011-03-16

J.H.BHATIA

body2011
Judgment :- 1. Heard the learned Counsel for the applicant, who is the original complainant and the accused/respondent in person. Perused the record. 2. According to the complainant, several cheques were issued by the accused in discharge of debts/liabilities. Those cheques were presented for encashment, but were dishonoured on different dates from 5.1.1994 to 14.1.1994. On 15.1.1994, notice in respect of all those cheques was issued to the accused demanding the payment of those cheques. The notice was served on the accused on the same day. He did not make payment within the stipulated period of 15 days after service. Three complaints in respect of those cheques were filed on 1.3.1994. The trial Court convicted the accused. However, in appeal, the Sessions Court acquitted. The Sessions Court held that the complaints were barred by limitation as they were not filed within one month from the expiry of 15 days available for payment to the accused. Hence, the complainant has filed three appeals with these applications seeking leave to prefer appeals. 3. Proviso to Sec. 138 provides that the payee or the holder in due course of the cheque has to make a demand for payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information by him from the bank regarding return of the cheque as unpaid. In this case, the cheques were dishonoured on three different dates from 5.1.1994 to 14.1.1994 and on 15.1.1994, notice was issued. Therefore proviso (b) was complied. Proviso (c) provides that the cause of action will arise if the drawer of such cheque fails to make payment of the said amount of money to the payee, or as the case may be, to the holder in due course within 15 days of receipt of said notice. Sec. 142(a) provides that no Courts shall take cognizance of offence under Sec. 138 except upon a complaint in writing made by the payee or holder in due course and unless such complaint is made within one month of the date on which the cause of action arose under clause (c) to proviso to Sec. 138. As per clause (c) to Sec. 138, the drawer of the cheque has to make payment within 15 days from the receipt of the notice. The notice was received by the accused on 15.1.1994. As per clause (c) to Sec. 138, the drawer of the cheque has to make payment within 15 days from the receipt of the notice. The notice was received by the accused on 15.1.1994. Therefore, he had time to make payment within 15 days. So he could have made payment upto 30.1.94. As he failed to make payment till the end of 30.1.1994, the cause of action arose on 31.1.1994. The complaint has to be made within one month from the date when the cause of action arises. 4. In Saketh India Ltd. & Ors. vs. India Securities Ltd. (1999) 3 SCC 1 , the Supreme Court considered the provisions of Sections 138 and 142 and observed thus:- "5. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in clauses (a), (b) and (c) are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable under Section 138 on a written complaint made by the payee or the holder in due course, if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British calendar as defined in the General Clauses Act, 1897. The question would be, whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose." "6. Similar contention was considered by this Court in the case of Haru Das Gupta v. State of W.B. wherein it was held hat 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 be exclude the first day and to included the last day." 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. 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 subsection (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. That day (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. In the present case, applying the same principle of excluding the first day on which the cause of action arose and including the last day, 31st January, 1994 will have to be excluded and then month of February is of 28 days and therefore, the complaint could be filed on 28th February. The learned Counsel for the applicant contended that the period of a month should be counted as 30 days and for this purpose, he relied on M/s. SIL Import, USA vs. M/s. Exim Aides Silk Exporters. 2000 DoCh.8 (Supreme Court). In that case also Section 142 was quoted. The learned Counsel for the applicant contended that the period of a month should be counted as 30 days and for this purpose, he relied on M/s. SIL Import, USA vs. M/s. Exim Aides Silk Exporters. 2000 DoCh.8 (Supreme Court). In that case also Section 142 was quoted. In that case, the notice was served on 25.6.1994 and according to the complainant, the cause of action had arisen on 11.7.1996 and as complaint was filed on 8.8.1996, the complaint was within time as the relevant period was July and August. Therefore, the Supreme Court observed thus in para 9 :- "9. The above controversy could have been averted if respondent had filed the complaint on any day between 11th and 26th of July, 1996, because any date during that interregnum would have been good either when the fax message is treated as the notice or when the registered notice is treated as the required intimation. Hence, on the facts of the case, the real point in controversy is, when did the cause of action arise ? A decision on the said point is vitally crucial for further continuance of the criminal proceeding, as law has imposed an interdict on the Court against taking cognizance of the offence after the expiry of 30 days counted from the date of arising of cause of action". In fact, the Supreme Court did not declare that in every case, the period of one month under Section 142 shall be treated as 30 days. The Supreme Court made the above observation only because the notice was issued in the month of June which has 30 days. The next two months i.e. July and August have 31 days. The Supreme Court was not called upon to decide how the period of one month would be counted, if the cause of action would arise on 30th or 31st January. In the present case, as pointed out above, the cause of action arose on 31st January and excluding that day also, the complaint should have been filed within one month. February being a month of 28 days, the month ended on 28th February. That day could not be excluded and therefore, the complaint could have been filed on or before 28th February. As the complaints were filed on 1st March, they were clearly beyond period of one month. February being a month of 28 days, the month ended on 28th February. That day could not be excluded and therefore, the complaint could have been filed on or before 28th February. As the complaints were filed on 1st March, they were clearly beyond period of one month. In view of this, it is difficult to find fault with the dismissal of the complaints by the appellate Court. 6. For the aforesaid reasons, these three Applications seeking leave to prefer appeal stand rejected.