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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.