IMPORTANT POINT
Day on which cause of action accrued in a matter under N.AI. Act has to be excluded for reckoning the period of limitation.

Nirmaljit Kaur, J. —This is a petition under Section 482 CrPC for quashing of the complaint under Section 138 of the Negotiable Instruments Act (P1) as well as summoning order dated 20.4.2006 (P2) as also subsequent proceedings arising there from pending in the Court of Shri Summit Ghai, learned Judicial Magistrate 1st Class, Chandigarh.

2. While praying for quashing of the complaint as well as summoning order, the only argument raised by the learned counsel for the petitioner was that from the perusal of para 5 of the complaint, itself, it is apparent that the first cheque was dishonoured on 24.12.2005 and the second cheque was dishonoured on 28.12.2005 and the third cheque was dishonoured on 13.1.2006 and the fourth cheque was dishonoured on 20.1.2006. As per own admission of the respondent, legal notice was issued to the petitioner on 27.1.2006. From the admission of the respondent itself, it is apparently clear that the notice under Section 138 of the Act is totally defective because as per the provisions of Section 138 (B) of the Act, the notice for dishonour of the cheque has to be given within 30 days from the receipt of information of dishonouring of the cheque. In the present case, as per the own averments and admission made by the respondent, the cheque in question was dishonoured on 24.12.2005 and the memo of the bank was also dated 24.12.2005, whereas, the legal notice has been issued on 27.1.2006 i.e. after a period of 30 days as envisaged under Section 138 (B) of the Act. Once the legal notice is against the statutory provisions and is defective, the complaint filed by the respondent on the basis of the same is also defective and cannot be entertained by the learned court. The learned Magistrate, while passing the summoning order, has failed to take into consideration that the complaint in the present case is time barred as the notice is defective and the same has been issued after the expiry of the period of 30 days, as provided under the Act. Thus, the entire proceedings are nothing but a sheer abuse of process of law, hence not sustainable and liable to be set aside. He relied on a judgment rendered by the Apex Court in the case of Sivakumar v. Natarajan1 to substantiate his argument that the complaint, wherein, the drawee sends notice on the 31st day instead of 30 days from the date of receipt of the intimation from the Bank, is liable to be quashed being not maintainable.

3. On the other hand, learned counsel for the respondent while vehemently opposing the same, submitted that the complaint was fully within limitation and notice was also issued within limitation as the petitioner is calculating the period of limitation from the 24.12.2005, whereas, the period of limitation has to be calculated from 28.12.2005 when the answering respondent received the intimation from their Bank and accordingly, legal notice dated 27.1.2006 was issued within 30 days as per the provisions of Negotiable Instrument Act.

4. Reliance is placed on the judgments rendered by the Apex Court in the cases of M/s Saketh India Ltd. and others v. M/s India Securities Ltd.2 as well as Jindal Steel and Power v. Ashoka Alloy Steel3 reported as Heard.

5. The relevant portion of Section 138 of the Negotiable Instrument Act 1881 reads as under:

“Section 138 Dishonour of cheque for insufficiency, etc, of founds in the account.

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(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; and”

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While calculating the said period, the period of one month i.e. 30 days for filing the complaint will have to be reckoned from the day immediately following the day, from the date of receipt of the information from the Bank that the cheque was dishonoured.

6. Hon’ble the