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TMI Blog2020 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... s' time from the date of receipt of notice by addressee to make payment - In the present case, notice returned unclaimed and received by complainant on 14.09.2000. If this date is taken to be due service of notice by accused-applicant then 15 days' time would expire on 29.09.2000. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Others [ 1999 (9) TMI 941 - SUPREME COURT ], it was held that if a notice is returned by sender as unclaimed, such date would be commencing date in reckoning the period of 15 days contemplated in Clause (c) to proviso of Section 138 of Act, 1881 - In the present case, since payment could have been made upto 29.09.2000 but when it is not made, cause of action arose on 30.09.2000. Since complaint in the present case, was filed within one month i.e. October, 2000, after excluding 30.09.2000, the day when cause of action arose, it cannot be said that complaint is exfacie barred by time provided in Section 142(b) of Act, 1881 - Applications dismissed. - Sudhir Agarwal, J. For the Applicant : Anil Kumar Bajpai For the Opposite Party : A.G.A., Ajay Shanker Pandey ORDER SUDHIR AGARWAL, J. 1. Heard Sri Anil Kumar Bajpai, learned counsel for applicant and le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t liable to pay any amount. He also raised objection that complaint was not maintainable having been filed by Assistant Manager who was not authorized by any Letter of Authorization or Resolution of Board of Directors of Cooperative Bank. He also contended that proceedings were initiated beyond the period prescribed under Section 138(b) of Act, 1881, inasmuch as, dishonoured cheques were returned to complainant on 24.08.2000, notice was issued on 06.09.2000 which was received back unclaimed on 14.09.2000 but complaint was filed on 31.10.2000, hence, it was barred by period of limitation prescribed under Section 142(b) of Act, 1881. 4. Said objection was rejected by Chief Judicial Magistrate concerned vide order dated 15.10.2004. Sri Bajpai, placed reliance on a Supreme Court's judgement in M/s Sil Import USA Vs. M/s Exim Aides Silk Exporters, Banglore 1999 (4) SCC 567 in support of his contention that complaint is barred by time. 5. In the connected case i.e. Application No. 12605 of 2004, similar complaint has been filed wherein also summoning order was issued on 21.11.2000 and objection of accused-applicant was rejected on 15.10.2004. Here, in connected case, cheque no. 82348 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 142 Cognizance of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138. (Emphasis added) 8. As per complaint, following dates are relevant: Date Events 24.08.2000 Cheques were submitted for collection by complainant-Cooperative Bank. 24.08.2000 Union Bank of India, Main Branch, Varanasi vide Memo of date informed Bombay Mercantile Cooperative Bank Limited, Nai Sadak, Varanasi that sufficient fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein 7 months have 31 days; 4 months have 30 days and one month has 28 days except leap year when it has 29 days. Therefore, number of days in the month varies. 15. Thus, one aspect is whether it should be number of days or corresponding month irrespective of number of days which has to be taken for the purpose of Section 142(b) of Act, 1881 . Secondly, if it is number of days i.e. 30 or 31 then whether it will include the day when cause of action has arisen . For example, if we take 30 days by including the date of cause of action, it will expire on 29.10.2000 but if we take it 31 days then it will expire on 30.10.2000. However, if the date of cause of action is excluded then period of month will commence from 01.10.2000 and if it goes with the definition of month in Act, 1897 then 31.10.2000 was well within the period of one month as contemplated under Section 142(b) of Act, 1881 but if it is taken to be 30 days, it will be contrary to term month since legislature has not mentioned days but it has used the term month . 16. In this backdrop, I would proceed to consider first whether for computing period of limitation under Section 142(b), the date when cause of action arose in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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