Ms. Chetani Automobiles and Another v. Advocates

3. Applicant challenged the order passed by learned Magistrate in a revision petition, which was dismissed by learned Sessions Judge, Pauri vide judgment dated

20.04.2018, by holding that statutory notice given by petitioner was after expiry of 30 days.

4. Thus, feeling aggrieved by order passed by learned Judicial Magistrate and judgment passed by learned Sessions Judge, applicants have approached this Court.

5. Mr. Navnish Negi, learned counsel appearing for applicants submits that judgment and order passed by learned Courts below are unsustainable; notice given by petitioner to respondent Nos. 2 & 3 was well within time and the finding to the contrary returned by learned Judicial Magistrate, as affirmed by learned Revisional Court, is unsustainable in the eyes of law.

6. Proviso (b) to Section 138 of Negotiable Instruments Act provides that notice has to be given by payee, in case of dishonour, to drawer of the cheque, within thirty days of receipt of information by him from the bank. For ready reference, proviso (b) to Section 138 of N.I. Act is extracted below:- “(b) the payee or the holder in due course of the cheque, as the case maybe, 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 thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid”

7. Learned counsel for the applicants submits that information regarding dishonour of cheque was received by his client, on 04.12.2015; since the date of receipt of such information has to be excluded and thirty days has to be counted from 05.12.2015, therefore, thirty days period would come to an end on 03.01.2016. He further submits that 03.01.2016, was holiday being a Sunday, therefore, in terms of Section 10 of General Clauses Act, 1897, notice was given by applicant to drawer of the cheque on, 04.01.2016. Thus, he submits that there was no delay on the part of applicant in giving notice and dismissal of his complaint by learned Judicial Magistrate, is thus unsustainable.

8. Per contra, Mr. D.C.S. Rawat, learned counsel appearing for respondent Nos. 2 & 3 submits that applicant was negligent in the matter and he slept over the matter and issued notice to drawer of cheque, on

04.01.2016, when thirty days period, prescribed in the statute expired.

9. Provision contained in Sections 9 and 10 of General Clauses Act, 1897 are attracted to the facts of the present case, therefore, for ready reference, they are extracted below:- “9. Commencement and termination of time U(1)U 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 “or”. U(2)U This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887.

10. Computation of time (1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: 1TProvided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies. 32TU(2)U32T 1TThis section applies also to all [Central Acts] and Regulations made on or after the fourteenth day of January, 1887.

10. The question, which falls for consideration, is whether the day, on which information regarding dishonour of cheque was received by complainant, is to be included in calculation of limitation period under Section 138(b) of N.I. Act or not?.

11. In the case of Econ Antri Limited Vs. Rom Industries Limited, reported in (2014) 11 SCC 769, three Judges Bench of Hon’ble Supreme Court, while answering a reference, rejected the contention that use of two different words in Section 138 N.I. Act, i.e. ‘from’ and ‘of’, is indicative of different meanings and resolved the conflict arising from discordant views taken in Saketh India Ltd. Vs. India Securities Limited, reported in (1999) 3 SCC 1 and SIL Import, USA Vs. Exim Aides Silk Exporters, Bangalore, reported in (1999) 4 SCC 567 in the following terms:- “26. 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.

28. The counsel, however, submitted that using two different words “from” and “of” in Section 138 at different places clarifies the intention of the legislature to convey different meanings by the said words. He submitted that the word “of” occurring in Sections 138(c) and 142(b) of the NI Act is to be interpreted differently as against the word “from” occurring in Section 138(a) of the NI Act. The word “from” may be taken as implying exclusion of the date in question and that may well be governed by the General Clauses Act, 1897. However, the word “of” is different and needs to be interpreted to include the starting day of the commencement of the prescribed period. It is not governed by Section 9 of the General Clauses Act, 1897. Thus, according to the learned counsel, 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 date on which the cause of action arises should be included for computing the period of 30 days.

29. We are not impressed by his submission…

34. As the Limitation Act is held to be not applicable to NI 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 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 is not possible to agree with the counsel for the respondents that the use of the two different words “from” and “of” in Section 138 at different places indicates the intention of the legislature to convey different meanings by the said words.

39. In view of the above, it is not possible to hold that the word “of” occurring in Section 138(c) and 142(b) of the NI Act is to be interpreted differently as against the word “from” occurring in Section 138(a) of the NI 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 included for computing the period of 30 days. As held in Fallon, ex p 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 Edn., Note (5), the word “of” is sometimes equivalent of “after”.

42. Having considered the question of law involved in this case in proper perspective, in the light of relevant judgments, we are of the opinion that Saketh lays down the correct proposition of law. We hold that for the 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. We hold that SIL Import, USA does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly.” (emphasis added)

12. The view taken in Econ Antri Limited (supra) has been reiterated and applied by Hon’ble Supreme Court in the case of Rameshchandra Ambalal Joshi Vs. State of Gujarat, reported in (2014) 11 SCC 759.

13. In view of Econ Antri (supra), a decision albeit rendered in relation to Section 138(c) and Section 142(b) N.I. Act, it is discernible that the words ‘of’ and ‘from’ used under Section 138 N.I. Act do not imply different meanings. It is safe to infer that the use of the word ‘of’ in Section 138(b) N.I. Act does not imply either that the day on which information regarding dishonour of cheque is received by the complainant from the bank is to be included while computing the limitation period for issuance of a valid legal notice.

14. The legal position, as culled out from the judicial dicta referred to hereinabove, is that while computing the limitation period of 30 days prescribed under Section 138(b) N.I. Act for issuance of a valid legal notice, the day on which intimation is received by the complainant from the bank that the cheque in question has been returned unpaid, has to be excluded.

15. Applying law to the present case, it is noted that information regarding dishonour of cheque was received by the applicant, on 04.12.2015, which has to be excluded. Statutory period of 30 days came to an end on

03.01.2016. Since 03.01.2016 was a holiday on account of Sunday, therefore, notice was given on the very next date i.e. on 04.01.2016.

16. Thus, this Court has no hesitation in holding that notice was within statutory period of 30 days and view to the contrary taken by learned Magistrate, as affirmed by learned Revisional Court, is unsustainable.

17. Accordingly, this Criminal Miscellaneous Application filed under Section 482 CrPC is allowed. Order dated

05.12.2017 passed by learned Judicial Magistrate, First Class, Kotdwar, District Pauri Garhwal and the judgment dated 20.04.2018, passed by learned Sessions Judge, Pauri Garhwal deserve to be set aside and are set aside. Complaint filed by applicant shall stand restored to the file of learned Magistrate, who shall decide it afresh, after recording statement of the complainant and the witness, if any. Mahinder/ (Manoj Kumar Tiwari, J.) 18.02.2025