IMPORTANT POINT
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; the effect of defining the period from such a day within which an act is to be done is to exclude the first day and to include the last day.

N.K. Mody, J.—Being aggrieved by order dated 14.3.2008 passed by J.M.F.C., Indore, whereby the cognizance of the offence punishable under Section 138 of Negotiable Instruments Act was taken against the petitioner; the present petition has been filed.

2. Short facts of the case that a private complaint was flied by the respondent against the petitioner under Section 138 of Negotiable Instruments Act alleging that a cheque was issued by the petitioner in favour of the respondent, which was dated 21.1.2005 amounting to Rs.2,00,000. It was alleged that the said cheque was sent for collection by the respondent with his Banker IDBI Bank, Ratlam Kothi, Indore. It was alleged that the said cheque was returned by the concerned bank with the memorandum dated 25.1.2005 bearing the remark “insufficient funds” it was alleged that after return of the cheque a notice of demand was issued by the respondent, which was dated 23.2.2005 sent by post on 24.2.2005. It was alleged that since inspite of receipt of notice the cheque amount was not paid therefore; petitioner has committed an offence punishable under Section 138 of Negotiable Instruments Act. It was prayed that after taking cognizance and after issuance of notice and framing of charge and recording of evidence the petitioner be convicted. After taking cognizance learned Trial Court issued notice to the petitioner against which the present petition has been filed. Learned counsel for the petitioner submits that the impugned order by which the cognizance was taken is illegal and deserves to be set aside. It is submitted that as per proviso (b) of Section 138 of Negotiable Instruments Act the holder of the cheque is bound to make a demand for payment of the amount or money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque which reads as under:

“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 thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid.”

3. Learned counsel submits that as per the complaint, it is evident that the cheque was returned to the complainant on 25.1.2005 while notice of demand was issued on 24.2.2005. It is submitted that the month of January is of 31 days, therefore, the notice, which was issued by the respondent itself was barred by law as it was not within thirty days of the receipt of information. It is submitted that since the mandatory requirement of proviso was not completed, therefore, learned Trial Court committed error in taking cognizance on the complaint of the respondent. For this contention reliance has been placed on a decision of Gujarat High Court in the matter of B.K. Sarkar v. State of Gujarat1 wherein the complaint was filed with a delay of one day along with an application for condonation of delay. Learned C.J.M., Surendranagar by condoned the delay and took the cognizance of the offence. In M.Cr.C. against the order of cognizance Gujarat High Court held that learned Court has committed an error in issuance of summons for the offence punishable under Section 138 of the N.I. Act by condoning delay of one day in issuing notice by the complainant as provided in proviso (b) of Section 138(b) of the N.I. Act. When the notice has not been issued beyond 30 days of receipt of intimation from the bank, complaint under Section 138 of the N.I. Act is not maintainable. It is submitted that undisputedly the notice was not issued within 30 days, therefore, the petition filed by the petitioner be allowed and