IMPORTANT POINT
If last day of limitation for filing complaint under Section 138 of Negotiable Instruments Act happens to be a holiday, complaint can be filed on next working day which shall be treated as presentation of complaint within time.

Dr. G. Yethirajulu, J.—The Criminal Appeal is preferred by the complainant against the Judgment of the II Metropolitan Magistrate, Hyderabad dated 17-9-2002 in C.C. No. 313/1999. The appellant filed a private complaint under Section 200, Cr. P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act (for short the “Act”) against respondents 1 and 2. The learned Magistrate after recording the evidence and after hearing both parties held that the complaint is barred by limitation and hence the accused are acquitted for the offence under Section 138 of the Act. Being aggrieved by the Judgment of the lower Court the appellant preferred the present appeal challenging its validity and legality.

2. The learned Counsel for the complainant submitted that the cause of action to file the complaint arose on 12-11-1999, limitation for filing complaint starts on 13-11-1999 and the limitation to file the complaint is on 12-12-1999. Since 12-12-1999, happens to be a Sunday, a public holidary, the complaint was filed on 13-12-1999 which is within the period of limitation. Therefore the lower Court is erred in holding that the complaint is barred by limitation. The learned Counsel for the respondents submitted that the complaint ought to have filed on 12-12-1999 itself or on the prior working day. As the complaint is not diligent in watching the period of limitation, the lower Court was right in holding that the complaint is barred by limitation. The learned Counsel in support of the said contention relied upon Section 142 of the Act, which reads as follows:

“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 complainant, 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 cause (c) of the proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

(c)no Court inferior to that a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.

It clearly indicates that the period of limitation is separately prescribed under this Act for filing a complaint under Section 138 of the Act irrespective of the limitation prescribed under the Limitation Act or any other law for preferring a complaint. He also relied on a Judgment of Kerala High Court in M/s. Poornasree Agencies v. M/s. Universal Enterprises1 , wherein it is held that period of limitation of one month from the date on which the cause of action arises has to be computed from the date of arising of cause of action and the complaint filed beyond one month from the date of cause of action starting that the last date of limitation for filing the complaint was a public holiday, does not save the limitation. Therefore the complaint is barred by limitation. The learned single Judge of the Kerala High Court observed as follows:

“The period of limitation as defined under (j) of Section 2 of the Limitation Act “means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act. “But then in view of the special provisions in the Negotiable Instrument Act the period prescribed there alone can be taken into account for the purpose of limitation and that is, that a complaint has to be filed within one month of the date when the cause of action had accrued. As stated already, petitioner had received the notice on 9-6-1993. That date has to be excluded and payment has to be made within 15 days from 10-6-1993 and that would expire on 24-6