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TMI Blog2014 (3) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... nizance of the offence and issued summons to the petitioner. 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. 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 Instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s earlier; xxx xxx xxx" We are in agreement with Mr. Ahmadi and, in fact, it is apparent from a plain reading of proviso (a) aforesaid that Section 138 of the Act would apply only when the cheque is presented to the Bank within a period of six months from the date on which it is drawn or within period of its validity, whichever is earlier. Mr. Ahmadi then points out that the cheque is valid from the date it is drawn and hence period of six months has to be calculated from the said date. On facts, he points out that the cheque was drawn on 31st of December, 2005 and presented on 30th of June, 2006, which is beyond the period of six months. He submits that cheque is valid from the date shown in it and therefore for calculation of six months, the date on which the cheque is drawn has to be included. He has suggested the following two modes of calculation: " CALCULATION OF THE PERIOD OF 6 MONTHS A S PRESCRIBED UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881. DATE OF DRAWL OF CHEQUE - 31.12.2005 DATE OF PRESENTATION OF CHEQUE- 30.06.2006 No. of days in the relevant months Month-wise calculation January - 31 days 1st Month 31st December to 30th January February - 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ambiguity or suspicion with reference to the date of commencement of period of limitation in any Act or special enactment, the words 'from and 'to' employed in Section 9 of the General Clauses Act can be pressed into service. We are in agreement with the aforementioned view." It may look like a repetition of the judgment but its relevance would be apparent from what we have observed in the subsequent paragraphs of this judgement. Given the general importance of the question involved, we had requested Mr. V.Giri, learned Senior Counsel, to assist us as amicus curiae and he very generously agreed to do so. We have also heard Ms. Hemantika Wahi, learned counsel appearing on behalf of the respondents. They contend that the period of six months had expired on 30th of June, 2006 i.e. the date on which the cheque was presented, which is within six months from the date it was drawn. They submit that as a general rule, in case of any ambiguity, Section 9 of the General Clauses Act, 1897 provides for exclusion of the first day and inclusion of the last day for the purpose of calculating commencement or termination of time. They submit that the date of issue of cheque, i.e. 31st of Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he General Clauses Act can be pressed into service." We would hasten to add that this Court in Sivakumar (supra) did not give nod to the following proposition enunciated by the Kerala High Court in K.V.Muhammed Kunhi (supra). "3.............But in the instant case before me, Section 138 proviso (a) is involved which is so clear (as extracted above) that the date of limitation will commence only from the date found in the cheque or the instrument." In the case of K.V.Muhammed Kunhi (supra) the cheque was dated 17.11.1994 and that was presented on 17.5.1995, and in this background the Court observed as follows: "5. .... When on the footing of the days covered by the British calendar month the period of limitation in the case on hand is calculated, the cheque ought to have been presented in the Bank for collection on or before 16-5-1995. But in this case, as pointed out above the cheque had been presented for collection only on 17-5-1995, which is clearly barred by limitation." In this case, six months' period expired a day prior to the corresponding month. In the case in hand, no such day falls in the corresponding month and therefore the last day would be last date of the immedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion followed consistently and for so long should not also be applied here." (underlining ours) This decision was quoted with approval in Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1 in the following words: "7. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and for the purpose of including the last in a series of days or any other period of time, to use the word "to". 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, we are of the view that it was presented within the period prescribed. Viewed from any angle, the prosecution is not time barred and therefore, cannot be scuttled at this stage on this ground. As the matter is pending since long, the learned Magistrate in seisin of the trial shall make endeavour to conclude it within six months from the date the appellant next appears in the case. We direct the appellant to appear before the trial Judge on 3rd of March, 2014 and no notice is to be issued to him for his appearance. In the result, we do not find any merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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