Back
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Chandramauli Kr. Prasad & Hon’ble Mr. Justice Jagdish Singh Khehar
Rameshchandra Ambalal Joshi
Versus
The State of Gujarat and Anr.
Criminal Appeal No. 434 of 20141—Decided on 18/02/2014
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 482 — General Clause Act, 1897 (Central Act No. 10 of 1897) — Sections 3(35) and 9 — Negotiable Instruments Act, 1881 (Central Act 26 of 1881) — Section 138 — Dishonour of cheque — Cheque issued on 31.5.2005 and presented for payment on 30th of June 2006 — Contention that cheque presented for payment beyond the period of six months therefore petitioner can not be prosecuted — Sustainability — Finding as to — Having considered the provision under Section 138(a) and relevant provision under General Clause Act Court held that the use of word ‘from’ in Section 138(a) of the Act of 1881 requires exclusion of the first day on which the cheque was drawn and inclusion of the last day within which act needs to be done — Since in the instant case cheque was presented on 30.6.2006 it was presented with in the prescribed period of six months and therefore prosecution was not barred and it can not be settled at the stage on said ground alleged.
Held :
Court is of the opinion that the use of word “from” in Section 138(a) requires exclusion of the first day on which the cheque was drawn and inclusion of the last day within which such act needs to be done. In other words, six months would expire one day prior to the date in the corresponding month and in case no such day falls, the last day of the immediate previous month. Hence, for all purposes, the date on which the cheque was drawn, i.e., 31.12.2005 will be excluded and the period of six months will be reckoned from the next day i.e. from 1.1.2006; meaning thereby that according to the British calendar, the period of six months will expire at the end of the 30th day of June, 2006. Since the cheque was presented on 30.6.2006, Court is of the view that it was presented within the period prescribed. [Para 25]
Viewed from any angle, the prosecution is not time barred and therefore, cannot be scuttled at this stage on this ground. [Para 26]
Law Laid Down :
The use of word ‘from’ in Section 138(a) of the Act requires exclusion of the first day on which cheque was drawn and inclusion of the last day within which such act need to be done.
Chandramauli Kr. Prasad, J.—According to the Complainant-Respondent No. 2, the accused-petitioner, Rameshchandra Ambalal Joshi was his friend, who had taken a loan of Rs. 1,00,000/- (Rupees one lac only) from the complainant. The petitioner issued a cheque dated 31st of December, 2005 towards repayment of the loan. The cheque presented for payment by the complainant on 30th of June, 2006 was dishonoured on the ground of insufficiency of funds on the same day. A registered notice dated 25th of July, 2006 was then sent by the complainant to which the petitioner replied. The complainant then filed Criminal Case No. 2146 of 2006 on 5th of September, 2006 alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) in the Court of Judicial Magistrate, First Class, Borsad, who took cognizance of the offence and issued summons to the petitioner.
2. An application for discharge was filed by the petitioner before the trial Court inter alia contending that as a period of six months had lapsed between the date of drawl of the cheque on 31st of December, 2005 and its presentation by the complainant on 30th of June, 2006 for payment, the petitioner cannot be prosecuted. The prayer of the petitioner was rejected by the trial Court on its finding that the provisions of discharge were not applicable to the present proceeding, they being in the nature of summons trial.
3. A criminal revision application against the aforesaid order, filed by the petitioner before the Court of Sessions, Anand was rejected by an order dated 5th of May, 2009, which the petitioner assailed in a petition filed under Section 482 of the Code of Criminal Procedure before the High Court. The High Court by its order dated 20th of August, 2010 rejected the application of the petitioner, observing as under:
“7. Though the submission has been made by the learned counsel, Mr. Hakim raising the contention with regard to the limitation, bare perusal of the provisions of Section 138 of the Negotiable Instrument Act, would make it clear that what law provides is presentation within a period of six months, meaning thereby, the Legislature has provided the period of six months by way of limitation. It is also clear that each month may not have same number of days and, therefore, wisely what has been provided in terms of months and not exact date or days, meaning thereby, 180 days. Therefore, cheque drawn on the last date of month of December would remain valid for a period of six months and the period of six months would expire after the last date of June i.e. 30th June, 2006. Therefore, in the facts and circumstances of the case, as the cheque has already been presented on 30th June, 2006, it cannot be said that it is barred by limitation. Therefore, the submission made by the learned counsel, Hakim cannot be readily accepted.”
4. It is against this order that the petitioner has preferred this special leave petition. Leave granted.
5. Mr. Huzefa Ahmadi, learned Senior Counsel draws our attention to proviso (a) of Section 138 of the Negotiable Instruments Act and contends that to attract its mischief the cheque is required to be presented in the Bank within six months from the date of its drawl. Otherwise, Section 138 of the Act would not apply. Section 138 of the Act, which is relevant for our purpose reads as follows:
“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
