The period of 15 days under section 138(c) of the Negotiable Instruments Act, 1881 begins on the day next to the day on which the service of notice has been effected.

JUDGMENT:---By judgement and order dated 9-12-1998 learned Single Judge (Coram H.R. Shelat, J.) proposed Reference in following terms to a Larger Bench :-

"From what day the period of 15 days envisaged by section 138(c) of Negotiable Instruments Act, 1881 begins to run, whether on and from the date of the service of the notice is effected or excluding the day on which the service of notice is effected ?"

That is now the present reference is before this Court in the context of following brief facts.

2. The appellant (the complainant) came in contact with 1st respondent (the accused) since they were hailing from the same community. The 1st respondent had a talk about the job, the appellant was seeking for. At that time the 1st respondent was in need of money. Initially Rs. 15,000/- came to be advanced on 18-5-1989. Rs. 20,000/- were again paid on 25-5-1989 and since he was in need of money Rs. 35,000/- were again advanced to him on 25-7-1989. He did not return the amount back as promised to the appellant. He, therefore, demanded the amount from the 1st respondent. It is in this background that the respondent No. 1 issued a cheque for Rs. 70,000/- drawn on Bank of Baroda, Odhav Branch, Ahmedabad on 21-10-1992. The appellant presented it in Mehsana Urban Co-operative Bank Ltd., Mehsana. The same, however, returned dishonoured. The appellant was intimated about the same. Respondent No. 1 was then informed about the dishonour of the cheque and he assured to make payment thereof any how. Subsequently at the request of the 1st respondent the cheque was presented again in the Mehsana Urban Co-operative Bank Ltd. at Mehsana. It was not honoured because of insufficient funds in the account of the 1st respondent. The bank received the cheque back on 21-1-1993 and intimation thereof was given to the appellant on 29-1-1993. The appellant then issued a notice on 6-2-1993 by Regd. post. It was received back with endorsement "refused". After such service of notice the respondent No. 1 made no payment. The appellant could see that the respondent No. 1 committed offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). Taking legal advice, the appellant filed complaint in the Court of the Ld. Chief Judicial Magistrate, Mehsana and the same was registered as Criminal Case No. 834 of 1993. The 1st respondent pleaded not guilty to the charge and claimed to be tried. Upon appreciation of evidence before him, the Ld. Chief Judicial Magistrate held that no cause of action had arisen for initiating criminal action in as much as the complaint being premature was liable to be dismissed and the 1st respondent was required to be acquitted. Hence, he rendered acquittal on 8-2-1996. That order of acquittal became the subject-matter of the present appeal before the Ld. Single Judge.

3. The question that arose before the Ld. Single Judge was thus in the context of the relevant dates about the receipt of notice and filing of complaint. To recall, the notice as contemplated under section 138(c) of the Act was issued on 6-2-1993. It was served on the 1st respondent as aforesaid on 9-2-1993. As no payment was made on or before 24-2-1993 the appellant filed the complaint alleging offences punishable under section 138 of the Act against the 1st respondent on 24-2-1993 itself. That is how the complaint was held to be premature because the cause of action had not arisen on that day. Question that was agitated before the Ld. Single Judge was whether the concept of exclusion of one day would apply in computing period of 15 days as contemplated by Clause (c) to section 138 of the Act. On behalf of the appellant reference was made to decisions in the case of (Smt. Aruna Bai v. Surendra Babu)1, reported in 1995(4) Crimes 538 : 1995 Cri.L.J. 1904(Kant). There, after the cheque was dishonoured notice was issued on 24-4-1992 which was served on 25-4-1992. It was held that the complaint was filed within the period of limitation as 15 d

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