9911796707
TMI Blog2021 (2) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequently, the limitation period in this case, which commenced on 20.06.2019, expired in the succeeding month on a day preceding the date of commencement i.e. 19.07.2019. Admittedly, the complaint in this case was instituted on 20.07.2019 i.e. 01 day after the limitation period had expired. Hence, both the courts below have fallen in error while computing the period of limitation. Moreover, at the time of filing, the complaint was not even accompanied by an application under Section 142 (b) NI Act for condoning the delay. It is pertinent to mention here that on one hand, Revisional Court in Para-16 of the impugned order (as extracted in Para-10 of this order) has held that as per tracking report and as admitted, petitioner had received the demand notice on 03.06.2019 and on the other hand, in Para-17 the Revisional Court has observed that as per tracking report, the demand notice was received by petitioner on 05.06.2019 and so, the complaint is filed within the limitation period. Revisional Court has erroneously taken into consideration two different dates for service of demand notice while computing the limitation period. It is an admitted fact that the demand notice was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Metropolitan Magistrate. The learned Metropolitan Magistrate took cognizance of the offence and vide impugned order dated 26.09.2019 summons were directed to be issued against the petitioner. 3. The order dated 26.09.2019 passed by the Metropolitan Magistrate, was challenged by petitioner vide Criminal Revision Petition No. 762/2019 and the Revisional Court vide impugned order dated 27.11.2020 dismissed the said petition with cost of ₹ 50,000/-, which is under challenge in this petition. 4. At the hearing, learned counsel for the petitioner submitted that the learned Metropolitan Magistrate had no jurisdiction to take cognizance of the complaint u/s 138 Negotiable Instruments Act (NI Act) filed by respondent No.2, without that being accompanied by application under Section 142 (b) NI Act for condoning the delay in filing the complaint. Learned counsel for petitioner further submitted that learned Metropolitan Magistrate, while taking cognizance of the complaint, did not take note of the fact that the complaint was filed beyond the limitation period and did not rightly calculate the days and therefore, direction to issue summons to the petitioner, is illegal and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also taken into consideration the British Calender while computing the period prescribed under Section 138 of the NI Act. 8. Learned counsel for second respondent further relied upon decision of Hon ble Supreme Court in M/s Saketh India Limited Ors. Vs. M/s. India Securities Limited 1999 AIR Supreme Court 1090 , wherein the Hon ble Supreme Court has held as under:- 5. Afore-quoted Section 138 of the Act inter alia provides that where any cheque drawn by a person is returned by the bank unpaid, such person shall be deemed to have committed an offence, however, it will apply, if the conditions mentioned in clauses (a), (b) and (c) are satisfied. Section 142 further provides that the court shall take cognizance of any offence punishable under Section 138 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 Clauses Act, 1897. The question would be, whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, was excluded. (See also Stewart v. Chapman [(1951) 2 KB 792 : (1951) 2 All ER 613] and North, Re, ex p Hasluck [(1895) 2 QB 264 : 64 LJQB 694] .) Thus, as a general rule the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. [See Halsbury's Laws of England, (3rd Edn.), Vol. 37, pp. 92 and 95.] There is no reason why the aforesaid rule of construction followed consistently and for so long should not also be applied here. 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 exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on period with regard to proviso (c) to Section 138 and Section 142(b) of the Negotiable Instruments Act, 1881, has held as under:- 42. Having considered the question of law involved in this case in proper perspective, in the light of relevant judgments, we are of the opinion that Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1 : 1999 SCC (Cri) 329] lays down the correct proposition of law. 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. We hold that SIL Import, USA [ SIL Import, USA v. Exim Aides Silk Exporters, (1999) 4 SCC 567 ] does not lay down the correct law. Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1] by this Court, which is confirmed by us, do not lay down the correct law on the question involved in this reference. The reference is answered accordingly. 12. In terms of dictum of Full Bench of Hon ble Supreme Court in Econ Antri Ltd. (Supra), the ratio of decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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