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Gauhati High Court · body

2015 DIGILAW 589 (GAU)

Abed Ali v. State of Assam

2015-05-19

C.R.SARMA

body2015
JUDGMENT C.R. Sarma, J. 1. Heard Mr. D.C.K. Hazarika, learned counsel appearing for the petitioner. Also heard Mr. B.J. Dutta, learned counsel for the State respondent No. 1 and Mr. M. Choudhury, learned counsel for the private respondent. As these criminal petitions involve same question of law and represented by the same set of counsel, for the sake of convenience and as agreed to by the learned counsel appearing for both the parties, I propose to dispose of these petitions by this common order. 2. The petitioner in Criminal Petition No. 654/2014, who is the accused person in Complaint Case No. 3735c/2013 and the petitioner in Criminal Petition No. 660/2014, who is the accused in Complaint Case No. 3736c/2013 pending before the learned Judicial Magistrate 1st Class, Kamrup, Guwahati invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for short Cr.P.C.) has prayed for quashing the said proceedings on the ground that the complaints, filed under Section138 of the Negotiable Instrument Act, 1881 (hereinafter called as the NI Act) are hit by limitations, as provided by Sections138(c) and 142(b) of the NI Act. It is the contention of the petitioner that the said complaint cases have been filed after expiry of one day of the statutory period of limitation and as such the said cases, being barred by law of limitation are not maintainable in the eye of law. 3. In the complaint case No. 3735c/2013, the complainant received the information, regarding dishonour of the concerned cheque, from the bank on 17.08.2013. He issued the statutory notice by registered A/D post on 16.09.2013 and the notice was received by the petitioner on 21.09.2013. The complaint was filed on 05.11.2013. 4. It is the contention of the petitioner that the notice was issued after expiry of 30 days and the case was also filed after one day of the date of expiry of the limitation period. According to the petitioner the last day of limitation for filing the case was on 04.11.2013, but the case was filed on 05.11.2013. Therefore, according to the petitioner, there was delay of one day in filing the case. 5. With regard to the Complaint Case No. 3736c/2013, the complainant i.e. the private respondent received information regarding dishonour of the concerned cheque on 24.08.2013 and he issued the statutory notice demanding payment on 16.09.2013. Therefore, according to the petitioner, there was delay of one day in filing the case. 5. With regard to the Complaint Case No. 3736c/2013, the complainant i.e. the private respondent received information regarding dishonour of the concerned cheque on 24.08.2013 and he issued the statutory notice demanding payment on 16.09.2013. The notice was received by the petitioner on 21.09.2013. According to the petitioner the 15 days statutory period expired on 05.10.2013 and as such the cause of action started running w.e.f. 06.10.2013. It is the contention of the petitioner that the last day of limitation for filing the case was on 04.11.2013 and as such the complaint filed by the private respondent on 05.11.2013 was barred by law of limitation. 6. Mr. D.C.K. Hazarika, learned counsel for the petitioner referring to the said relevant dates, has submitted that in Complaint Case No. 3735c/2013 as the 30 days period expired on 15.09.2013 and as such the notice dated 16.09.2013 demanding payment was issued after expiry of statutory period and that the case was also filed after the expiry of one day of the statutory period of limitation which expired on 04.11.2013. 7. With regard to the Complaint Case No. 3736c/2013 the learned counsel for the petitioner has submitted the information regarding dishonour of the cheque, being received on 24.08.2013, the demand notice issued on 16.09.2013 and the notice being received by the accused/petitioner on 21.09.2013 the cause of action arose on 06.10.2013 and as such the last date of limitation being 04.11.2013, the case filed on 05.11.2013, was barred by law of limitation (i.e. delay of one day). In view of the above, the learned counsel for the petitioner has submitted that the said cases filed after the expiry of the period of limitation are not maintainable in the eye of law. 8. Refuting the said argument, advanced by the learned counsel for the petitioner, Mr. M. Choudhury, learned counsel for the respondent has submitted that, though there is no dispute regarding the dates of receipt of information from the bank, issuance of statutory notice and filing of the case, the calculation regarding period of limitation has not been properly done as per the law prescribed by the statute as well as the decisions, rendered by the Apex Court. The learned counsel for the petitioner has stated that the word 'from' used in Section 138(b) and the word 'of' appearing in Section 142(b) of the NI Act indicate that the period of limitation is to be counted excluding the first date of receipt of information, the first date of cause of action and the last date of expiry of 15 days notice. The learned counsel for the petitioner, referring to the provisions of Section 9 of the General Clauses Act and the Section 12 of the Limitation Act has submitted that, if the date of receipt of information regarding dishonour of the cheque and the last date of expiry of 15 days period of the notice are excluded then the cause of action, in the said complaint cases, will start running from 07.10.2013 and in that event, the complaints, filed on 05.11.2013, were well within time. 9. It has also been submitted that the learned Magistrate, while taking cognizance on 06.11.2013 in both the cases aforesaid committed no error with regard to limitation. 10. In support of his contention, the learned counsel appearing for the respondent has relied on the decisions held in K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. reported in (1999) 7 SCC 510 , Saketh India Ltd. & Ors. Vs. India Securities Ltd. reported in (1999) 3 SCC 1 , Econ Antri Ltd. Vs. Rom Industries Ltd. & Anr. reported in AIR 2013 SC 3283 . 11. Having heard the learned counsel appearing for both the parties and carefully perusing the materials, on record, it is found that the disputed question is whether the cases, filed by the respondent/complainant, are barred by delay of one day. According to the petitioner, there was delay in filing the complaint, whereas according to the respondent the computation of the period of limitation, made by the petitioner (accused) was wrong inasmuch as both the cases were filed within time. 12. The petitioner has calculated the period of limitation including the date on which the information regarding dishonour of the cheque was received from the bank, the date of receipt of the statutory notice of demand by the accused and the first date of arising the cause of action. If the said dates are included in computing the period of limitation then it will appear that the complaints aforesaid were brought after one day of expiry of period of limitation. If the said dates are included in computing the period of limitation then it will appear that the complaints aforesaid were brought after one day of expiry of period of limitation. But if the said dates are excluded in calculating the period of limitation then it will clearly be found that the cause of action in both the cases arose from 07.10.2013 and the cases, filed on 05.11.2013, were well within time. 13. As held by the Hon'ble Supreme Court in case of Saketh India Ltd and Ors. (supra) a month, as provided by Section 142 of the NI Act, has to be reckoned according to the British calendar, as defined in General Clauses Act, 1897. In the said case the Supreme Court, referring to the decision held in the case of Haru Das Gupta Vs. State of West Bengal reported in (1972) 1 SCC 639 , AIR 1972 SC 1293 ) observed that when 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. 14. In the case of Saketh India Ltd. (supra), under Section 138 of the NI Act notices were served on the accused on 29.09.1995. As per the Section 138(c) of the NI Act the accused were required to make payment of the cheque amount within 15 days. Hence, due to failure of the accused to make payment, cause of action arose from 15.10.1995. Complaint was filed on 15.11.1995. It was contended that the complaint was filed beyond time. The Hon'ble Supreme Court, on appeal, held that the period of 15 days expired on 14.10.1995, so the cause of action for filing the case arose on 15.10.1995, excluding the 15th October for counting the period of one month the complaint filed on 15.11.1995 was within time. 15. Referring to a catena of decisions and reconsidering the decision, held in the case of Saketh India Ltd. (supra), the Supreme Court in the case of Econ Antri Ltd. (supra) held that Saketh (supra) laid down the correct proposition of law. In the said case the Supreme Court held that, for purpose of calculating the period of one month, which is prescribed under Section 142(b) of the NI Act, the period has to be reckoned by excluding the date, on which the cause of action arose. In the said case the Supreme Court held that, for purpose of calculating the period of one month, which is prescribed under Section 142(b) of the NI Act, the period has to be reckoned by excluding the date, on which the cause of action arose. It has also been observed that, any decision contrary to the view taken in Saketh (supra), was no longer correct law. 16. In the case of K. Bhaskaran (supra) the Hon'ble Supreme Court observed as follows: "20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure." 17. In the case of Econ Antri Ltd. (supra), which has been relied upon by the learned counsel appearing for both the parties, the Hon'ble Supreme Court observed as follows: "22. In view of the above, it is not possible to hold that the word 'of' occurring in Sections 138(c) and142(b) of the N.I. Act is to be interpreted differently as against the word 'from' occurring in Section 138(a)of the N.I. Act; and that for the purpose of Section 142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting day on which the cause of action arises should be included for computing the period of 30 days. As held in Ex parte Fallon the words 'of', 'from' and 'after' may, in a given case, mean really the same thing. As stated in Stroud's Judicial Dictionary, Vol. 3 1953 Edition, Note (5), the word 'of' is sometimes equivalent of 'after'." 18. In the case of Econ (supra) it has been observed as follows: "20. As held in Ex parte Fallon the words 'of', 'from' and 'after' may, in a given case, mean really the same thing. As stated in Stroud's Judicial Dictionary, Vol. 3 1953 Edition, Note (5), the word 'of' is sometimes equivalent of 'after'." 18. In the case of Econ (supra) it has been observed as follows: "20. As the Limitation Act is held to be not applicable to N.I. Act, drawing parallel from Tarun Prasad Chatterjee where the Limitation Act was held not applicable, we are of the opinion that with the aid of Section 9 of the General Clauses Act, 1897 it can be safely concluded in the present case that while calculating the period of one month which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose. It is not possible to agree with the counsel for the respondents that the use of the two different words 'from' and 'of' in Section 138at different places indicates the intention of the legislature to convey different meanings by the said words." 19. In view of the above principles, laid down by the Hon'ble Supreme Court and the statutory provision as indicated above, there is no difficulty in understanding that for the purpose of computing the period of 15 days, the date of service or receipt of the notice by the accused is to be excluded and in calculating the period of one month also, as prescribed by Section 142(b) of the NI Act, the date, on which the cause of action arose is to be excluded. It is also clear that the meaning of the words 'of' and 'from' appearing in Section 138 and 142(b) is to be treated as after. In view of the above, the notices in both the cases at hand, having been received by the accused person on 21.09.2013, the 15 days period is to be calculated excluding the day of receipt of the notice and in that case the 15 days period would expire on 06.10.2013. So the cause of action for filing the complaint arose from 07.10.2013 and not from 05.10.2013, as contended on behalf of the petitioner. The petitioner has included the day of receipt of the notice of the accused, which is not the correct proposition of law. So the cause of action for filing the complaint arose from 07.10.2013 and not from 05.10.2013, as contended on behalf of the petitioner. The petitioner has included the day of receipt of the notice of the accused, which is not the correct proposition of law. As the cause of action for filing the complaint arose from 06.10.2013 that day i.e. 06.10.2013 is to be excluded in computing the period of one month. Therefore, the complaints filed on 05.11.2013 were within time. In view of what has been discussed hereinabove, I find no merit in these criminal petitions requiring interference in exercise of jurisdiction under Section 482. Hence, the criminal petitions are dismissed. The stay order, if any, shall stand vacated.