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1999 Supreme(Ker) 321
Judges : K.A.MOHAMED SHAFI
Josay Kondody - Appellant
Versus
Chacko Thomas - Respondent
Case No : Crl. R.P. No. 688 of 1994
Decided On : 09/07/1999
Advocates Appeared :
For the Petitioner: K. M. Joseph, Advocate. For the Respondent: Mathew John, Advocate.
The main legal point established in the judgment is the interpretation of the period of limitation for filing a complaint under Section 138 of the Negotiable Instruments Act, particularly regarding the exclusion of the date when the cause of action arose.
Headnote:
Limitation - Negotiable Instruments Act - Section 138 - 138, 142 - The court discussed the interpretation of the period of limitation for filing a complaint under Section 138 of the Negotiable Instruments Act. The key legal provisions of Sections 138 and 142 were considered, and the court relied on the decision of the Supreme Court in Saketh India Ltd. v. India Securities Ltd. to determine the computation of the period of limitation. The subsequent conflicting decision in SIL Import U.S.A. v. Exim Aides Silk Exporters was also considered, and the court concluded that the earlier judgment provided a more accurate interpretation of the law on the point.
Fact of the Case:
The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, alleging that the respondent's cheque had bounced. The lower Court dismissed the complaint as barred by limitation, as it was filed a day after the period of one month from the date of service of the notice.
Finding of the Court:
The court found that the lower Court had erred in its interpretation of the period of limitation. It held that the complaint was filed within the period of limitation and allowed the revision, setting aside the impugned order and directing the lower Court to restore the case on file and dispose of it in accordance with the law.
Issues: The key issue was the computation of the period of limitation for filing a complaint under Section 138 of the Negotiable Instruments Act, considering conflicting decisions of the Supreme Court on the exclusion of the date when the cause of action arose.
Ratio Decidendi: The court's decision was based on the interpretation of the period of limitation under Sections 138 and 142 of the Negotiable Instruments Act, relying on the earlier judgment in Saketh India Ltd. v. India Securities Ltd. to determine the computation of the period of limitation.
Final Decision: The revision was allowed, and the impugned order was set aside. The lower Court was directed to restore the case on file and dispose of it in accordance with the law, after giving the parties an opportunity to adduce evidence.
This revision is preferred by the complainant in S.T. 254/91 on the file of the Chief Judicial Magistrate's Court, Kottayam challenging the order dated 12-4-1994 dismissing the complaint filed by him as barred by limitation.
2. The revision petitioner filed the complaint against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. The respondent after entering appearance before the lower Court contended that the complaint filed by the revision petitioner is barred by time. The lower Court considered that contention as a preliminary point and after finding that the complaint filed by the revision petitioner was barred by limitation, dropped the case from the file as per the impugned order.
3. After the cheque issued by the respondent was bounced, the revision petitioner sent a registered notice intimating about the dishonour of the cheque and calling upon him to pay the amount due under the cheque and it was served upon the respondent on 12-1-91. The lower Court found that the limitation starts from 13-1-91 and ends on 27-1-91, from that date the revision petitioner has got one month's time to file the complaint. Therefore, starting from 28-1-91 one month ends on 27-2-91. The complaint was filed on 28-2-91, a day after the period of one month and therefore, the complaint is barred by limitation.
4. There is no dispute with regard to the date of service of the notice sent by the revision petitioner to the respondent, under the 2nd proviso to Section 138 of the N.I. Act. The revision petitioner has contended that it is settled law that the first day of the period of one month viz. 28-1-91 has to be excluded in computing the period of limitation of one month and therefore the complaint filed by the revision petitioner on 28-2-91 is perfectly within time. In support of this contention the counsel for the revision petitioner relies upon the decision of the Supreme Court in Saketh India Ltd. v. India Securities Ltd., (1999) 1 Ker LJ 820 : (1999 Cri LJ SC). In that case the question that came up before the apex Court was whether the complaint filed by the respondent therein under Section 138 of the Negotiable Instruments Act was within or beyond time, as it was contended that it was filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the N.I. Act. In that case notices intimating about the dishonour of the cheque were served upon the accused on 29-9-1995. The complaints were filed on 15-11-1995. Therefore it was contended that the complaints were filed beyond time. The apex Court after elaborate consideration of Sections 138 and 142 of the N.I. Act and also the question whether for calculating the period of one month which is prescribed under Section 142(b) of the N.I. Act the period has to be reckoned by excluding the date on which the cause of action arose, held that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired. Accordingly in that case the apex Court found that the period of 15 days expired on 14-10-1995, the cause of action for filing the complaint arose from 15-10-95 and that day 15th October is to be excluded for counting the period of one month. Therefore, the complaint filed on 15-11-1995 is within time.
5. The counsel for the respondent submitted that in view of the subsequent decision of the Supreme Court in SIL Import U.S.A. v. Exim Aides Silk Exporters, (1999) 2 Ker LT 275 : (1999 Cri LJ 2276) the above decision relied upon by the counsel for the revision petitioner cannot be followed. According to him, the subsequent ruling of the Supreme Court is in direct conflict with the decision of the Supreme Court reported in (1999 1 Ker LJ 820 : (1999 Cri LJ 1822).
6. The decision in SIL Import, U.S.A. v. Exim Aides Silk Exporters (1999) 2 Ker LT 275 :
