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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Narendra Kumar Vyas, J.
Juli Bhansali W/o Shree Premchand Bhansali - Petitioner
Versus
Sanjay Singhi S/o Shree T.C. Singhi - Respondent
ACQA No. 449 of 2024
Decided On : 13-02-2025
(A) Negotiable Instruments Act, 1881 - Section 138 - Acquittal appeal against dismissal of complaint for dishonor of cheque - The trial court dismissed the complaint on grounds of limitation, stating notice was issued after 30 days of dishonor - The appellant argued for exclusion of certain days in the computation of the notice period - Court held that the date of receipt of the dishonor memo is excluded in calculating the notice period, thus allowing the appeal. (Paras 2, 11, 12, 10)
(B) Limitation - Computation of time - The court emphasized that the day of the act or event from which the period runs should not be counted against the complainant, following established legal principles. (Paras 9, 10)
Facts of the case:
The appellant filed a complaint under Section 138 alleging dishonor of a cheque for Rs. 6,00,000/- issued by the accused after a loan agreement. The trial court dismissed the complaint, stating the notice was sent after the statutory period.
Findings of Court:
The court found that the notice was sent within the statutory period when excluding the relevant days, thus the trial court's dismissal was erroneous.
Issues: The main issues were whether the limitation period started from the date of receipt of the dishonor memo and whether Sundays should be excluded from the notice period.
Ratio Decidendi: The court ruled that the date of receipt of the dishonor memo is excluded from the limitation period, and Sundays are also excluded, allowing the notice to be valid.
Result: Appeal allowed and matter remitted back to trial court for merits.
Based on the provided legal document, the key points are as follows:
The court clarified that when calculating the notice period under Section 138 of the Negotiable Instruments Act, the date of receipt of the dishonor memo is excluded from the computation (!) .
The court emphasized that the day on which the event or act occurs from which the period runs should not be counted against the complainant, following established legal principles (!) (!) .
The period of limitation for sending the legal notice begins from the day after the receipt of the dishonor memo, and Sundays or public holidays are to be excluded when counting the days (!) (!) .
The date of receipt of the dishonor memo was established as 09.09.2022, and this date is excluded from the calculation of the 30-day notice period (!) .
The notice was issued on 10.10.2022, which falls within the permissible period when excluding the receipt date and holidays, making the notice valid (!) .
The trial court's conclusion that the notice was beyond the statutory period was found to be erroneous and contrary to law, leading to the appeal being allowed (!) .
The case was remitted back to the trial court for a decision on merits, with parties instructed to appear before the court on 25.04.2025 (!) .
The court referred to the relevant provisions of the law regarding the calculation of time, including Sections 105 and 138 of the Negotiable Instruments Act, and the General Clauses Act, to support the interpretation that the period should exclude the day on which the cause of action or event occurred, as well as holidays (!) (!) .
The legal interpretation aligns with the principle that the first day in a period is excluded when counting days from a specific date, ensuring the notice was timely (!) (!) .
Overall, the court held that the statutory requirements for the notice period were satisfied, and the complaint should not have been dismissed on the grounds of limitation (!) .
These points collectively establish that the notice under Section 138 was issued within the prescribed period when proper exclusions are applied, and the dismissal of the complaint on limitation grounds was incorrect.
Order :
(Narendra Kumar Vyas, J.)
1. The appellant/complainant has filed present acquittal appeal under Section 378(4) of the Criminal Procedure Code against the order dated 13.03.2023 passed by learned Judicial Magistrate First Class, Daundilohara, District Balod (C.G.) by which learned trial Court has dismissed the complaint filed by the appellant/complainant under Section 138 of the Negotiable Instrument Act, 1881 ( in short “the N.I. Act, 1881”).
2. The brief facts as reflected from the record are that the appellant/complainant has filed a complaint under Section 138 of the N.I. Act before learned Judicial Magistrate First Class, Daundilohara, District Balod (C.G.)alleging that the complainant had given Rs. 6,00,000/- to the accused on 28.11.2017 after execution of written promissory note mentioning that he will return the amount by 25.02.2018 and also promised to pay interest on the said loan amount of Rs. 6,00,000/- at the rate of 1.50 percent per month. In compliance of the promissory note, the accused has paid the interest till 09.03.2020 and after that interest amount was not paid. When the complainant demanded amount, the respondent has given a cheque of Rs. 6,00,000/- maintaining in the bank account No. SB938591305 with the Indian Bank, Branch Rajnandgaon bearing cheque No. 027595 dated 18.08.2022. The appellant/complainant has deposited the same in Bank where he is maintaining the account on 05.09.2022 which has been dishonoured and returned to the complainant on 09.09.2022 with endorsement in the forwarding memo that ‘dishonored due to insufficient fund, thereafter, the complainant sent a legal notice on 10.10.2022 but no reply has been filed. The same notice dated 10.10.2022 was duly served upon the accused but he has neither replied to it nor paid the amount which has necessitated the complainant to file a complaint under Section 138 of the N.I. Act before learned Judicial Magistrate First Class on 29.11.2022 which was dismissed by learned trial Court vide order dated 13.03.2023 on the count that cheque forwarding memo was communicated by the Bank to the complainant on 09.09.2022 and notice has been issued on 10.10.2022 i.e. after 30 days. Thus, it has dismissed the complaint on the count that it has been served after 30 days which is in violation of Section 138(B) of the N.I. Act. Being aggrieved with this order, complainant has preferred this acquittal appeal.
3. Learned counsel for the appellant would submit that the impugned order suffers from perversity and illegality. He would further submit that the appellant is entitled to get counting of limitation from 10.09.2022 which is next date of receiving of the forwarding memo to 09.09.2022 as per Section 105 of the N.I. Act which provides that holiday has to be excluded from counting of the period of 30 days.
4. Per contra, learned counsel for the respondent appearing through video conferencing would submit that next date of limitation will start from 09.09.2022 only whereas it has been given on 10.10.2022 thus it is barred by limitation and would submit that learned trial Court has not committed any illegality in dismissing the complaint. To substantiate his submission he would refer to the judgment of the Hon’ble Supreme Court in case of Kamlesh Kumar Vs. State of Bihar reported in LAWS(SC) 2013 1223 wherein paragraph 12 to 14 reads as under:
“12. Applying the aforesaid principles, in the present case, we find that cheque was presented, second time, on 10.11.2008. The complainant, however, sent the legal notice on 17.12.2008 i.e. much after the expiry of the 30 days. It is clear from the complaint filed by the complainant himself that he had gone to the bank for encashment the cheque on 10.11.2008 but the cheque was not honoured due to the unavailability of the balance in the account.
13. The crucial question is as to on which date the complainant received the information about the dishonour of the cheque. As per the appellant the complainant received the informatio
The court established that the date of receipt of the dishonor memo is excluded in calculating the notice period under Section 138 of the Negotiable Instruments Act.
The court established that in computing time limits under Section 138 of the NI Act, the first day is excluded and the last day is included.
The court ruled that, for calculating the 30-day notice period under S.138, the day of receipt of information about the cheque return is excluded.
The correct computation of the statutory period for filing a complaint in cases of dishonoured cheques is essential for the court's decision.
The notice under Section 138 of the N.I. Act must be issued within 30 days of receiving information about the dishonor of the cheque; failure to comply renders the complaint non-maintainable.
The court confirmed that a dishonoured cheque can lead to criminal liability under Section 138, provided all statutory requirements, including timely filing of the complaint, are met.
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