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2025 (4) TMI 62 - HC - Indian LawsChallenge to impugned summoning order and are seeking quashing of the complaint case filed by the respondent - Dishonour of Cheque - time limitation - complaint filed after the expiry of the limitation period of one month as envisaged under Section 142(1) of the NI Act - also impugned order passed without taking into consideration the entire facts and circumstances - violation of principles of natural justice - HELD THAT - In Econ Antri Ltd. v. Rom Industries Ltd. 2013 (9) TMI 246 - SUPREME COURT the Hon ble Supreme Court while deciding the issue of calculation of limitation period with regard to proviso (c) to Section 138 and Section 142(b) of the NI Act followed one of its earlier judgments passed in Saketh India Ltd. v. India Securities Ltd. 1999 (3) TMI 591 - SUPREME COURT and held that We hold that for the purpose of calculating the period of one month which is prescribed under Section 142(b) of the NI Act the period has to be reckoned by excluding the date on which the cause of action arose. In terms of the judgment of the Hon ble Supreme Court Sections 138(c) and 142(b) of the NI Act the Court concerned shall take cognizance of any offence punishable under Section 138 of the NI Act on a written complaint made by the payee or the holder in due course if such complaint is filed within one month of the date on which the cause of action arises. A month is to be reckoned according to the British Calendar as defined in the General Clause Act 1897. Thus ordinarily in computing the time the rule observed is to exclude the first day and to include the last. Applying the said rule the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of the receipt of the notice by the drawer expires. In the instant case the memo of dishonor of cheque is of 17th October 2019 and the legal demand notice was issued on 15th November 2019 which is within the prescribed limitation period. Thus there is no dispute regarding the same - Further 15 days after the issuance of notice expired on 1st December 2019. Therefore in terms of the provisions and the settled position of law excluding 2nd December 2019 30 days period started from 3rd December 2019 and the limitation period for filing the complaint expired on 2nd January 2020. Under the circumstances whenever the legislature has intended to condone the delay same is provided and no such condonation of delay is provided in Section 138 of the NI Act but the same is provided in Section 142(b) of the NI Act. Power to condone delay as provided under Section 142 of the NI Act is to be read and considered only with regard to delay in filing the complaint within period of one month and it cannot be extended to condone delay with regard to other lapses more particularly delay in issuing notice as contemplated under Section 138(b) of the NI Act - if the date of filing the complaint is taken to be 10th January 2020 then in such an event it is clear that there is a delay of 3 days. However while issuing summons the learned Trial Court held that the present complaint has been filed within the limitation period. This Court is of the view that as per the copy of the complaint placed on record the respondent has specifically pleaded that the petitioner no. 2 herein was responsible for the day to day affairs of the company and he along with the other accused had approached the complainant through a purchase order for supply of some products. Therefore for the purpose of issuing summons this Court is of the view that prima facie case is made out and the argument advanced by the petitioners cannot be entertained at this stage and he will be at liberty to press the said issue at the appropriate stage before the Court concerned. Furthermore the entire complaint cannot be quashed merely on the said ground at this stage. Coming to the issue of not providing sufficient reasons for summoning the petitioners it is observed that the respondent had filed the evidence by way of an affidavit. It is pertinent to note that as per Section 145 of the NI Act the complainant may give its evidence via an affidavit and upon satisfaction of the Court concerned the same may be treated as an evidence for summoning the accused for any enquiry trial or proceedings. Therefore it is held that the learned Trial Court passed the impugned order in accordance with the law and there is no illegality of any kind thereto. Conclusion - i) The complaint is filed within the limitation period or any minor delay was condonable under Section 142(b) of the NI Act. ii) A prima facie case is made out for issuing summons based on the respondent s affidavit evidence. iii) The Trial Court s summoning order is justified and that the petitioners could raise their arguments regarding petitioner no. 2 s involvement during the trial. This Court is not inclined to exercise its powers under Section 482 of the CrPC (now Section 528 of the BNSS) to quash the impugned order and the complaint case. In light of the same the impugned order is hereby upheld - Petition dismissed.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment include: 1. Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, was filed within the prescribed limitation period. 2. Whether the Trial Court erred in taking cognizance of the complaint without considering the alleged delay in filing. 3. Whether the summoning order against the petitioners was justified, particularly concerning the involvement of petitioner no. 2 in the company's day-to-day affairs. ISSUE-WISE DETAILED ANALYSIS 1. Limitation Period for Filing the Complaint - Relevant Legal Framework and Precedents: The limitation period for filing a complaint under Section 138 of the NI Act is one month from the date the cause of action arises, as outlined in Section 142(b) of the NI Act. The Supreme Court's decision in Econ Antri Ltd. v. Rom Industries Ltd. clarified that the period should be calculated by excluding the date on which the cause of action arose. - Court's Interpretation and Reasoning: The Court examined the timeline of events, noting that the memo of dishonor was dated 17th October 2019, and the legal demand notice was issued on 15th November 2019. The limitation period ended on 2nd January 2020, but due to holidays, the next working day was 6th January 2020. - Key Evidence and Findings: The evidence by way of affidavit was verified on 6th January 2020, indicating that the complaint was filed within the limitation period. - Application of Law to Facts: Based on the evidence, the Court concluded that the complaint was filed within the limitation period, or at most, there was a minor delay of three days, which could be condoned. - Treatment of Competing Arguments: The petitioners argued that the complaint was filed late, but the Court found that the delay was minimal and could be condoned under Section 142(b) of the NI Act. - Conclusions: The Court held that the complaint was filed within the permissible period, and any minor delay could be condoned. 2. Validity of the Summoning Order - Relevant Legal Framework and Precedents: Summons in a complaint case under the NI Act are issued based on prima facie evidence, as established in various Supreme Court and High Court judgments. - Court's Interpretation and Reasoning: The Court emphasized that a prima facie case must be made out for issuing summons, and the evidence by way of affidavit submitted by the respondent was sufficient for this purpose. - Key Evidence and Findings: The respondent's complaint and affidavit indicated that petitioner no. 2 was responsible for the company's day-to-day affairs, justifying the issuance of summons. - Application of Law to Facts: The Court found that the Trial Court correctly issued summons based on the affidavit evidence, which complied with Section 145 of the NI Act. - Treatment of Competing Arguments: The petitioners contended that petitioner no. 2 was not responsible for the company's operations, but the Court found the respondent's assertions sufficient to establish a prima facie case. - Conclusions: The Court upheld the summoning order, stating that the petitioners could address their grievances at the appropriate stage in the trial. SIGNIFICANT HOLDINGS - The Court held that the complaint was filed within the limitation period, or any minor delay was condonable under Section 142(b) of the NI Act. - The Court emphasized that a prima facie case was made out for issuing summons based on the respondent's affidavit evidence. - The Court concluded that the Trial Court's summoning order was justified and that the petitioners could raise their arguments regarding petitioner no. 2's involvement during the trial. - The petition was dismissed, with the Court noting that the delay in challenging the order amounted to misuse of the legal process.
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