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PETITIONER:

M/S. SAKETH INDIA LIMITED AND OTHERS

Vs.

RESPONDENT:

M/S. INDIA SECURITIES LIMITED

DATE OF JUDGMENT: 10/03/1999

BENCH:

K.T.Thomas, M.B.Shah

JUDGMENT:

Shah, J,

Leave granted. The short question involved in these

appeals is whether the complaint filed by the respondent

under Section 138 of the Negotiatiable Instruments Act is

within or beyond time as it is contended that it is not

filed within one month from the date on which the cause of

action arose under clause (c) of the proviso to Section 138

of the Negotiable Instruments Act (hereinafter referred to

as "the Act").

In the present case, cheques dated 15th and 16th

March, 1995 issued by the appellants bounced when presented

for encashment as per the bank endorsement. Notices were

served on the accused on 29th September, 1995. As per

section 138 (c) accused were required to make payment of the

said amount of money within 15 days. The accused failed to

pay the said amount, hence the cause of action for filing

the complaint arose from 15th October, 1995. Complaints

were filed on 15th November, 1995. Therefore, it is

contended that complaints were filed beyond time. Accused

petitioners approached the High Court by filing petition

under Section 482 of the Criminal Procedure Code for

quashing and setting aside the process issued by the XI

Additional Chief Metropolitan Magistrate, Bangalore. Those

petitions were rejected by the High Court by common order

and Judgment dated 25th September, 1997. Hence, these

appeals.

For appreciating the contention raised by the learned

Counsel for the appellants, it would be necessary to

reproduce sections 138 and 142 of the Act which are as

under:-

"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

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deemed to have committed an offence and shall, without

prejudice to any other provision of this Act, be punished

with imprisonment for a term which may extend to one year,

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 fifteen days of 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.

142. Cognizance of offences ----Notwithstanding

anything contained in the Code of Criminal

Procedure,(1973),---

(a) no court shall take cognizance of any offence

punishable under Section 138 except upon a complaint, in

writing, made by the payee or, as the case may be, the

holder in due course of the cheque;

(b) such complaint is made within one month of the

date on which the cause of action arises under clause(c) of

the proviso to Section 138;

(c) no court inferior to that of a Metropolitan

Magistrate or a Judicial Magistrate of the first class shall

try any offence punishable under Section 138."

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 conditions

mentioned in clauses (a), (b) and (c) are satisfied.

Section 142 further provides that 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?

Similar contention was considered by this Court in the

case of Haru Das Gupta vs. 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

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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 :- "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 Goldsmith Company vs. The West Metropolitan

Railway Company : 1904 KB 1 at 5) This rule was followed in

Cartwrright vs. Maccormack : (1963) 1 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

compensatioin 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 Halllsbury'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."

The aforesaid principle of excluding the day from

which the period is to be reckoned is incorporated in

Section12 (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 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'. 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.

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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.

Hence, the appeals are dismissed.