Case was originally filed before the trial court. Dissatisfied with the trial court's jusgment,then the case was filed in session court where it was dismissesd. They then filed the suit ...
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 434 OF 2014
(@ SPECIAL LEAVE PETITION(CRL.)No. 7595 of 2011)
RAMESHCHANDRA AMBALAL JOSHI ….APPELLANT
VERSUS
THE STATE OF GUJARAT AND ANR. ….RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
According to the complainant-respondent
No. 2, the accused-petitioner, Rameshchandra
Ambalal Joshi was his friend, who had taken a
loan of Rs.1,00,000/- (Rupees one lac only)
from the complainant. The petitioner issued a
cheque dated 31
st
of December, 2005 towards
repayment of the loan. The cheque presented
for payment by the complainant on 30
th
of June,
2006 was dishonoured on the ground of
Page 2 insufficiency of funds on the same day. A
registered notice dated 25
th
of July, 2006 was
then sent by the complainant to which the
petitioner replied. The complainant then
filed Criminal Case No. 2146 of 2006 on 5
th
of
September, 2006 alleging commission of offence
under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to
as ‘the Act’) in the Court of Judicial
Magistrate, First Class, Borsad, who took
cognizance of the offence and issued summons
to the petitioner.
An application for discharge was filed by
the petitioner before the trial court inter
alia contending that as a period of six months
had lapsed between the date of drawl of the
cheque on 31
st
of December, 2005 and its
presentation by the complainant on 30
th
of
June, 2006 for payment, the petitioner cannot
be prosecuted. The prayer of the petitioner
2
Page 3 was rejected by the trial court on its finding
that the provisions of discharge were not
applicable to the present proceeding, they
being in the nature of summons trial.
A criminal revision application against
the aforesaid order, filed by the petitioner
before the Court of Sessions, Anand was
rejected by an order dated 5
th
of May, 2009,
which the petitioner assailed in a petition
filed under Section 482 of the Code of
Criminal Procedure before the High Court. The
High Court by its order dated 20
th
of August,
2010 rejected the application of the
petitioner, observing as under:
“7. Though the submission has been
made by the learned counsel, Mr.
Hakim raising the contention with
regard to the limitation, bare
perusal of the provisions of Section
138 of the Negotiable Instrument
Act, would make it clear that what
law provides is presentation within
a period of six months, meaning
thereby, the Legislature has
provided the period of six months by
3
Page 4 way of limitation. It is also clear
that each month may not have same
number of days and, therefore,
wisely what has been provided in
terms of months and not exact date
or days, meaning thereby, 180 days.
Therefore, cheque drawn on the last
date of month of December would
remain valid for a period of six
months and the period of six months
would expire after the last date of
June i.e. 30
th
June, 2006.
Therefore, in the facts and
circumstances of the case, as the
cheque has already been presented on
30
th
June, 2006, it cannot be said
that it is barred by limitation.
Therefore, the submission made by
the learned counsel, Hakim cannot be
readily accepted.”
It is against this order that the
petitioner has preferred this special leave
petition.
Leave granted.
Mr. Huzefa Ahmadi, learned senior counsel
draws our attention to proviso (a) of Section
138 of the Negotiable Instruments Act and
contends that to attract its mischief the
cheque is required to be presented in the Bank
4
Page 5 within six months from the date of its drawl.
Otherwise, Section 138 of the Act would not
apply. Section 138 of the Act, which is
relevant for our purpose reads as follows:
“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 for 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
5
Page 6 it is drawn or within the
period of its validity,
whichever is earlier;
xxx xxx xxx”
We are in agreement with Mr. Ahmadi and,
in fact, it is apparent from a plain reading
of proviso (a) aforesaid that Section 138 of
the Act would apply only when the cheque is
presented to the Bank within a period of six
months from the date on which it is drawn or
within period of its validity, whichever
is earlier.
Mr. Ahmadi then points out that the cheque
is valid from the date it is drawn and hence
period of six months has to be calculated from
the said date. On facts, he points out that
the cheque was drawn on 31
st
of December, 2005
and presented on 30
th
of June, 2006, which is
beyond the period of six months. He submits
that cheque is valid from the date shown in it
and therefore for calculation of six months,
6
Page 7 the date on which the cheque is drawn has to
be included. He has suggested the following
two modes of calculation:
“ CALCULATION OF THE PERIOD OF 6 MONTHS AS
PRESCRIBED UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881 .
DATE OF DRAWL OF CHEQUE – 31.12.2005
DATE OF PRESENTATION OF CHEQUE– 30.06.2006
No. of days in the
relevant months
Month-wise
calculation
January – 31 days 1
st
Month
31
st
December to 30
th
January
February – 28 days 2
nd
Month
30
th
January to 27
th
February
March – 31 days 3
rd
Month
27
th
February to 30
th
March
April – 30 days 4
th
Month
30
th
March to 29
th
April
May – 31 days 5
th
Month
29
th
April to 30
th
May
June – 30 days 6
th
Month
30
th
May to 29
th
June
OR
No. of days in the
relevant months
Month-wise calculation
7
Page 8 January – 31 days 1
st
Month
31
st
December to 30
th
January
February – 28 days 2
nd
Month
31
ST
January to 27
th
February
March – 31 days 3
rd
Month
28
th
February to 27
th
March
April – 30 days 4
th
Month
28
th
March to 27
th
April
May – 31 days 5
th
Month
28
th
April to 27
th
May
June – 30 days 6
th
Month
28
th
May to 27
th
June
To put the record straight, the modes
suggested, in fact, do not reflect his
submission. He, however, submits that
whichever mode is adopted, the cheque was not
presented within the period of six months. In
support of the submission, he has placed
reliance on a decision of the Kerala High
Court in the case of K.V. Muhammed Kunhi vs.
P. Janardhanan [1998 CRL.L.J. 4330] and our
attention has been drawn to the following
passage from the said judgment:
8
Page 9 “3. ………..A comparative study of both
the Sections in the Act and the
General Clauses Act significantly
indicate that the period of
limitation has to be reckoned from
the date on which the cheque or
instrument was drawn. The words
‘from’ and ‘to’ employed in Section
9 of the General Clauses Act are
evidently clear that in cases where
there is an ambiguity or suspicion
with reference to the date of
commencement of period of limitation
in any Act or special enactment, the
words ‘from’ and ‘to’ employed in
Section 9 of the General Clauses Act
can be pressed into service. But in
the instant case before me, Section
138 proviso (a) is involved which is
so clear (as extracted above) that
the date of limitation will commence
only from the date found in the
cheque or the instrument.”
Mr. Ahmadi submits that the aforesaid view
has been approved by this Court in the case of
Sivakumar vs. Natarajan (2009) 13 SCC 623 in
the following words:
“14. ………..A comparative study of
both the Sections in the Act and the
General Clauses Act significantly
indicate that the period of
limitation has to be reckoned from
the date on which the cheque or
instrument was drawn. The words
‘from’ and ‘to’ employed in Section
9 of the General Clauses Act are
9
Page 10 evidently clear that in cases where
there is an ambiguity or suspicion
with reference to the date of
commencement of period of limitation
in any Act or special enactment, the
words ‘from and ‘to’ employed in
Section 9 of the General Clauses Act
can be pressed into service.
We are in agreement with the
aforementioned view.”
It may look like a repetition of the
judgment but its relevance would be apparent
from what we have observed in the subsequent
paragraphs of this judgement.
Given the general importance of the
question involved, we had requested Mr.
V.Giri, learned Senior Counsel, to assist us
as amicus curiae and he very generously agreed
to do so. We have also heard Ms. Hemantika
Wahi, learned counsel appearing on behalf of
the respondents.
They contend that the period of six months
had expired on 30
th
of June, 2006 i.e. the date
10
Page 11 on which the cheque was presented, which is
within six months from the date it was drawn.
They submit that as a general rule, in case of
any ambiguity, Section 9 of the General
Clauses Act, 1897 provides for exclusion of
the first day and inclusion of the last day
for the purpose of calculating commencement or
termination of time. They submit that the date
of issue of cheque, i.e. 31
st
of December,2005
is to be excluded and the last day, i.e. 30
th
of June, 2006 is to be included for the
purpose of calculating the period of six
months under proviso (a) of Section 138 of the
Act. According to the learned counsel, since
the last day of the six months’ period was 30
th
of June, 2006 and the cheque was presented on
that very same day, the complaint under
Section 138 of the Act is not time barred.
We have given our most anxious
consideration to the submissions advanced and
11
Page 12 we do not find any substance in the submission
of Mr. Ahmadi that the cheque was not
presented to the Bank within a period of six
months from the date on which it was drawn and
the judgments relied on go against him instead
of supporting his contention.
The first question which calls for our
answer is the meaning of the expression
“month”: whether it would mean only a period
of 30 days and, consequently, whether six
months would mean a period of 180 days. The
word “month” has been defined under Section
3(35) of the General Clauses Act to mean a
month reckoned according to the British
calendar. Therefore we cannot ignore or eschew
the word ‘British calendar’ while construing
“month” under the Act. Accordingly, we are of
the opinion that the period of six months
cannot be calculated on 30 days in a month
basis. Therefore, both the modes of
12
Page 13 calculation suggested by Mr.Ahmadi do not
deserve acceptance and are rejected
accordingly.
The next question which calls for our
answer is the date from which six months’
period would commence. In case of ambiguity
with reference to the date of commencement,
Section 9 of the General Clauses Act can be
pressed into service and the same reads
as follows:
“9. Commencement and termination of
time.-(1) In 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 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”.
From the judgment of this Court in the
case of Sivakaumar(supra) and as quoted in the
preceding paragraph of this judgment, it is
evident that this Court recorded its agreement
13
Page 14 to a limited extent that “in cases where there
is an ambiguity or suspicion with reference to
the date of commencement of period of
limitation” “Section 9 of the General Clauses
Act can be pressed into service.” We would
hasten to add that this Court in Sivakumar
(supra) did not give nod to the following
proposition enunciated by the Kerala High
Court in K.V.Muhammed Kunhi (supra) .
“3………….But in the instant case
before me, Section 138 proviso (a)
is involved which is so clear (as
extracted above) that the date of
limitation will commence only from
the date found in the cheque or the
instrument.”
In the case of K.V.Muhammed Kunhi (supra)
the cheque was dated 17.11.1994 and that was
presented on 17.5.1995, and in this background
the Court observed as follows:
“5. …. When on the footing of the
days covered by the British calendar
month the period of limitation in
the case on hand is calculated, the
cheque ought to have been presented
in the Bank for collection on or
14
Page 15 before 16-5-1995. But in this case,
as pointed out above the cheque had
been presented for collection only
on 17-5-1995, which is clearly
barred by limitation.”
In this case, six months’ period expired a
day prior to the corresponding month. In the
case in hand, no such day falls in the
corresponding month and therefore the last day
would be last date of the immediate
previous month.
Mr. Ahmadi appeals to us that if we take
the view that the cheque was presented to the
Bank before the expiry of six months, it would
be in the teeth of the judgment of this Court
in the case of Sivakumar (supra) and therefore
the matter shall be required to be referred to
a larger Bench. From what we have observed
above, we have not taken a view different than
what has been held in Sivakumar (supra) and
therefore we do not find any necessity to
refer the case to a larger Bench.
15
Page 16 Proviso (a) to Section 138 of the Act uses
the expression “six months from the date on
which it is drawn”. Once the word ‘from’ is
used for the purpose of commencement of time,
in view of Section 9 of the General Clauses
Act, the day on which the cheque is drawn has
to be excluded.
This Court, relying on several English
decisions, dealt with the issue of computation
of time for the purpose of limitation
extensively in Haru Das Gupta v. State of West
Bengal, (1972) 1 SCC 639 wherein Paragraph 5
states as follows:
“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.
The West Metropolitan Railway Co.
(1904 KB 1 at 5). This rule was
16
Page 17 followed in Cartwright v.
Maccormack (1963) 1 All E.R. 11,
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 and 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 Halsbury’s Laws
of England (3
rd
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.”
(underlining ours)
This decision was quoted with approval in
Saketh India Ltd . v. India Securities Ltd .,
(1999) 3 SCC 1 in the following words:
17
Page 18 “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.
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 sub-section (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……………”
The correctness of this judgment came up
for consideration before a three-Judge Bench
18
Page 19 of this Court in Econ Antri Ltd . vs. Rom
Industries Ltd. & Anr., AIR 2013 SC 3283 which
approved the reasoning of this Court given in
Saketh (supra) and Haru Das Gupta (supra) and
held as under:
“16. We have extensively referred to
Saketh. The reasoning of this Court
in Saketh based on the above English
decisions and decision of this Court
in Haru Das Gupta which aptly lay
down and explain the principle that
where a particular time is given
from a certain date within which an
act has to be done, the day of the
date is to be excluded, commends
itself to us as against the
reasoning of this Court in SIL
Import USA where there is no
reference to the said decisions.
xxx xxx xxx
22. In view of the above, it is not
possible to hold that the word ‘of’
occurring in Section 138(a) and
142(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 purposes 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
19
Page 20 included for computing the period of
30 days. As held in Ex parte Fallon
(1793) 5 Term Rep 283 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’.”
At this stage, we would also like to refer
to Halsbury’s Law of England, Vol. 37, 3
rd
Edn., Paragraph 143 at Pages 83-84 which
provides for calculation of a calendar month:
“143. Calendar month running from
arbitrary date. When the period
prescribed is a calendar month
running from any arbitrary date the
period expires with the day in the
succeeding month immediately
preceding the day corresponding to
the date upon which the period
starts; save that, if the period
starts at the end of a calendar
month which contains more days than
the next succeeding month, the
period expires at the end of the
latter month.”
Drawing a conclusion from the above
mentioned authorities, we are of the opinion
that the use of word “from” in Section 138(a)
20
Page 21 requires exclusion of the first day on which
the cheque was drawn and inclusion of the last
day within which such act needs to be done. In
other words, six months would expire one day
prior to the date in the corresponding month
and in case no such day falls, the last day of
the immediate previous month. Hence, for all
purposes, the date on which the cheque was
drawn, i.e., 31.12.2005 will be excluded and
the period of six months will be reckoned from
the next day i.e. from 1.1.2006; meaning
thereby that according to the British
calendar, the period of six months will expire
at the end of the 30
th
day of June, 2006. Since
the cheque was presented on 30.6.2006, we are
of the view that it was presented within the
period prescribed.
Viewed from any angle, the prosecution is
not time barred and therefore, cannot be
scuttled at this stage on this ground. As the
21
Page 22 matter is pending since long, the learned
Magistrate in seisin of the trial shall make
endeavour to conclude it within six months
from the date the appellant next appears in
the case. We direct the appellant to appear
before the trial Judge on 3
rd
of March, 2014
and no notice is to be issued to him for his
appearance.
In the result, we do not find any merit in
the appeal and it is dismissed accordingly.
………..………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
………………….………………………………….J.
(JAGDISH SINGH KHEHAR)
NEW DELHI.
FEBRUARY 18, 2014.
22
Legal Notes
Add a Note....