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2024 DIGILAW 1071 (KER)

M. G. Alexander v. Biju Chellappan

2024-08-29

SOPHY THOMAS

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JUDGMENT : This appeal is at the instance of the complainant in CC No. 238 of 2000 on the file of Judicial First Class Magistrate Court - I, Kollam, impugning the judgment in Crl. Appeal No. 36 of 2003 on the file of Additional District and Sessions Judge (Adhoc-III), Kollam, by which the conviction of the accused under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’) by the trial court was set aside, and the accused was acquitted. 2. The case of the appellant/complainant was that, the 1st respondent/accused borrowed Rs.5 lakh from him on 15.07.1999, and issued Ext.P1 cheque dated 01.12.1999 towards discharge of that debt. He assured him that it would be encashed on presentation before the bank. He presented that cheque before the bank, but it was dishonoured on 10.12.1999 stating reason ‘payment stopped’ and the intimation was received on 16.12.1999. The appellant sent notice to the 1st respondent on 31.12.1999 which was returned unclaimed on 22.01.2000. Since the amount was not paid, he filed a complaint on 18.02.2000. 3. After taking cognizance, on appearance of the accused, particulars of offence was read over, and explained, to which, he pleaded not guilty. Thereupon, PW1 was examined, and Exts. P1 to P7 were marked from the side of the complainant. 4. On closure of the evidence of the complainant, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. The accused himself was examined as DW1. On analyzing the facts and evidence, learned Magistrate found the accused guilty under Section 138 of the NI Act, and he was convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5,000/- which shall be given to PW1 as compensation, in case of realization. In default of payment of fine, he was directed to undergo simple imprisonment for a further period of one month. 5. Aggrieved by the conviction and sentence, the accused preferred Crl. Appeal No. 36 of 2003 before Additional District and Sessions Judge (Adhoc - III), Kollam. The appellate court found that, Ext.P1 cheque was issued by the accused towards discharge of Rs.5 lakh which was borrowed by him from the complainant. 5. Aggrieved by the conviction and sentence, the accused preferred Crl. Appeal No. 36 of 2003 before Additional District and Sessions Judge (Adhoc - III), Kollam. The appellate court found that, Ext.P1 cheque was issued by the accused towards discharge of Rs.5 lakh which was borrowed by him from the complainant. But finding that the statutory notice under Section 138(b) of the NI Act was sent beyond the statutory period prescribed, the conviction and sentence was set aside and the accused was acquitted. The complainant has preferred this appeal challenging that acquittal, by the appellate court. 6. Heard learned counsel for the appellant as well as learned counsel for the 1st respondent. 7. Learned counsel for the appellant would submit that, regarding execution of Ext.P1 cheque by the accused towards discharge of a legally enforceable debt, there is concurrent finding by the trial court as well as the appellate court. So the only question to be answered in the present appeal is regarding the statutory notice prescribed under Section 138 (b) of the NI Act; was it within the time prescribed or beyond the time. 8. Learned counsel for the 1st respondent pointed out that the definite case of the accused from the very outset was that, the complainant was a stranger to him, and while he was working as a receptionist in a hotel, one Mr.Mohanan who was Circle Inspector of police, Alappuzha stayed in that hotel, and they became acquainted with each other. The accused agreed to construct a building for the brother of Sri. Mohanan for an amount of Rs.1 lakh. He received Rs.50,000/- from Sri.Mohanan as advance amount. As a security for the amount received from Sri. Mohanan, he issued a blank cheque to him. Even after completing the work as agreed, the blank cheque given by the accused was not returned to him. Misusing that cheque, a false complaint was filed against him. 9. On a scrutiny of the trial court judgment, it could be seen that the contention taken up by the accused was thoroughly examined by the learned Magistrate, and found that there was nothing to substantiate his case. Though some witnesses were cited by the accused as defence witnesses, none of them were examined by him. 10. 9. On a scrutiny of the trial court judgment, it could be seen that the contention taken up by the accused was thoroughly examined by the learned Magistrate, and found that there was nothing to substantiate his case. Though some witnesses were cited by the accused as defence witnesses, none of them were examined by him. 10. On analysing the available evidence and records, this Court also is satisfied with the finding of the trial court, that the accused failed to prove his case that Ext.P1 cheque was issued only as a security. The trial court as well as the appellate court concurrently found that Ext.P1 cheque was issued by the accused on 01.12.1999 towards discharge of Rs.5 lakh borrowed by him from the complainant on 15.07.1999. 11. Now let us examine whether the statutory notice under Section 138 (b) of the N.I Act, was issued within the time stipulated. Admittedly, Ext.P1 cheque was dishonored on 10.12.1999 as per Ext.P2 dishonor memo. Ext.P3 is the intimation dated 16.12.1999 through which the complainant got intimation of dishonour of the cheque. Ext.P4 lawyer notice was issued on 31.12.1999. If the date of getting intimation is excluded, the notice sent on 31.12.1999 is well within the statutory period. If 16.12.1999 i.e., the date on which the intimation received is included, then the notice was sent with a delay of one day which is beyond the statutory period. 12. Section 138 (b) of N.I Act, prior to Amendment Act 55 of 2002 reads thus:- “(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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. 13. Learned counsel for the appellant would submit that, when a particular period is mentioned for performing an act, the first day has to be excluded, and the last day has to be included. It is true that if the intimation is received late in the afternoon, there is no possibility for sending a lawyer notice on the same day. That argument assumes significance in the light of the decision of the Apex Court in Saketh India Ltd. v. India Securities Ltd. (1999 KHC 456). It is true that if the intimation is received late in the afternoon, there is no possibility for sending a lawyer notice on the same day. That argument assumes significance in the light of the decision of the Apex Court in Saketh India Ltd. v. India Securities Ltd. (1999 KHC 456). It was a decision delivered detailing the nuances in computing the period under the Limitation Act, General Clauses Act as well as Section 138 of the N.I Act. Paragraphs 6 to 8 of that decision is worth quoting, to get clarity and guidance in the question to be resolved. “6. Similar contention was considered by this Court in the case of Haru Das Gupta v. State of West Bengal 1972 (1) SCC 639 wherein it was held that 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 day is to be excluded; the effect of defining 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. In the context of that case, the Court held that in computing the period of three months from the date of detention, which was February 5th, 1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated May 5th, 1971 was made before the expiration of the period of three months from the date of detention. The Court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle Court referred to the principle followed in English Courts. The relevant discussion is hereunder :- "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. 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 Goldsmith Company v. The West Metropolitan Railway Company: 1904 KB 1 at 5) This rule was followed in Cartwrright v. Maccormack (1963) I All ER 11 at 13 where the expression "fifteen days from the 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. Chadman (1951) 2 KB 792 and In re North, Ex parte Wasluck (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 Hallsbury's 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." 7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in S.12(1) and (2) of the Limitation Act, 1963. S.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 sub-section (2) for appeal, revision or review. The same principle is also incorporated in S.9 of 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. 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.” 14. The pre-amended Section 138 (b) of the NI Act prescribes a time limit of 15 days from the date of receipt of information from the bank regarding return of the cheque as unpaid. When the cheque is presented before the drawee bank, and it is dishonoured from that bank and returned to the payee or holder in due course with a dishonour memo, the date of receipt of that dishonour memo is the crucial date in reckoning the period of 15 days. When the cheque was sent for collection through another bank, and the intimation of dishonour was received from that bank along with dishonour memo issued by the drawee bank, the 15 days period can be reckoned from the date of intimation from the collecting bank, and not from the date of dishonour of the cheque by the drawee bank. It is not the date of dishonour that is crucial, but the date of receipt of information either from the payee bank or from the collecting bank, by the payee or the holder in due course, regarding return of the cheque as unpaid. 15. Based on Saketh India Ltd’s case cited supra, it has to be held that, where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded. 15. Based on Saketh India Ltd’s case cited supra, it has to be held that, where a particular time is given from a certain date within which an act is to be done, the day on that day 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 exclude the first day and to include the last day. In the light of Sections 12(1) and 12(2) of the Limitation Act, 1963 as well as Section 9 of the General Clauses Act, 1897 the Apex Court observed that the Limitation for filing a complaint under Section 138 of the N.I Act, from the day on which the cause of action arises, then also, the first day has to be excluded for counting the period of one month. In the case on hand, the date of receipt of intimation was on 16/12/1999. Applying the ratio in Saketh India Ltd’s case cited supra, that day has to be excluded, and if so, Ext.P4 lawyer notice sent on 31/12/1999 was well within the statutory period. So, the finding of the appellate court that the notice was sent after expiry of the statutory period of 15 days is liable to be set aside. Consequently, the acquittal of the accused also is to be reversed, restoring the conviction of the accused by the trial court under Section 138 of the N.I Act. 16. As already stated, the accused was sentenced to undergo simple imprisonment for six months, and fine of Rs.5,000/-, which, on realization, shall be given to the complainant/PW1 as compensation under Section 357(1) Cr.P.C with a default sentence of simple imprisonment for one month. The transaction was of the year 1999. The appeal was pending before this Court for the last 17 years. 17. Considering the long delay, and the purpose and object of the legislation, this Court is inclined to modify the sentence as simple imprisonment for one day till rising of court, and to pay compensation of Rs.5 lakh to the appellant/complainant with a default sentence of simple imprisonment for six months. 18. The 1st respondent/accused has to appear before the trial court on or before 01.11.2024 to receive the sentence, and to pay the compensation amount to the appellant/complainant. 18. The 1st respondent/accused has to appear before the trial court on or before 01.11.2024 to receive the sentence, and to pay the compensation amount to the appellant/complainant. If he is absent to receive the compensation amount, the 1st respondent can deposit the same before the trial court. If the 1st respondent/accused fails to appear before the trial court on 01.11.2024 to receive the sentence and to pay the compensation, the trial court has to take steps for executing the sentence without further delay. 19. Registry to forward a copy of this judgment along with the trial court records to Judicial First Class Magistrate Court-I, Kollam to take follow up action. The appeal stands allowed accordingly.