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TMI Blog2024 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, the concerned Magistrate shall take cognizance of the offence as per Section 142 of the NI Act, only if the complaint is made in writing, by payee or holder in due course of time and within one month from the date on which the cause of action arises. It is pertinent to unfold the series of events that took place between the respondent no. 2 and the petitioner, wherein the cheque presented by the respondent no. 2 was returned for insufficient funds vide the return memo dated 25th May, 2019. Thereafter, the respondent no. 2, adhering to the statutory requirement of 30 days mentioned under clause (b) of proviso to Section 138 of the NI Act, issued a legal demand notice to the petitioner for the payment of due amount on 21st June, 2019 and the same was received by the petitioner on 24th June, 2019 as per the postal tracking report on record. It is pertinent to note that the Hon ble Supreme Court in the case of M/S. SAKETH INDIA LIMITED AND OTHERS VERSUS M/S. INDIA SECURITIES LIMITED [ 1999 (3) TMI 591 - SUPREME COURT] observed that the day on which the cause of action arises must be excluded in computing the limitation period for filing of the complaint as per Section 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court does not find any reasons to exercise its powers under Section 482 of the Code as the instant petition is bereft of any merits - Petition dismissed. - HON'BLE MR. JUSTICE CHANDRA DHARI SINGH For the Petitioner Through: Appearance not given. versus For the Respondent Through: Ms. Richa Dhawan, APP for the State. Mr. Murari Lal Sharma, Advocate ORDER CHANDRA DHARI SINGH, J (Oral) 1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter as the Code ) (now under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023) has been filed on behalf of the petitioner seeking the following reliefs: (A) Quash the Impugned summoning order dated 24/12/2019 passed by Sh. Mayank Goel: Mm-03, North: Rohini Court: Delhi In CC No. 3859/2019 Title As Pawan Kumar Vs Ashok Kumar Sharma and consequently dismissal of the complaint filed by the respondent no 2 under section 138 of Negotiable Instrument Act 1881. (B). ALSO QUASH THE REVISION ORDER DATED 13/04/2023, PASSED BY SHRI. SATISH KUMAR: ASJ:NORTH: DELHI (C) Summons / call the records of the above stated complaint, and/or Pass any order/further order which this Hon ble Court may deem fit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 13th April, 2023 (hereinafter as the impugned revision order ) 8. Aggrieved by the summoning as well as the impugned revision order, the petitioner has filed the instant petition seeking setting aside of the same. 9. Learned counsel on behalf of the petitioner submitted that the learned MM erred in passing the summoning order without any application of judicial mind, consideration of documents on record and position of law. 10. It is submitted that there was a delay in filing the complaint under Section 138 of the NI Act by respondent no. 2. Moreover, the respondent no. 2 failed to serve a copy of the application seeking condonation of delay to the petitioner. 11. It is submitted that the learned MM erroneously passed the summoning order without condoning the said delay in filing the complaint under Section 138 of the NI Act. 12. It is further submitted that the original copy of the legal notice is mandatory to be part of the judicial record, however, the learned MM failed to observe that the original copy of the legal notice was not filed as part of the judicial record and therefore, there exits patent illegality in the summoning order. 13. It is submitted that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice . However, the said terminologies are devoid of any specific definition due to its wide ambit and therefore, the determination as to whether the case falls within the scope of the aforesaid terms lies with the Court and must be testified based on the established principles of law. Moreover, under this provision, the Court must exercise its adverse powers sparingly, cautiously and in exigent cases. 25. Adverting to the merits of the case, it is the contention of the petitioner that the learned MM was wrong in taking cognizance of the case and issuing summons against the petitioner in the proceedings under Section 138 of the NI Act because firstly, there was a delay of four days in filing the complaint under Section 138 of the NI Act; secondly, the delay of four days was not condoned while passing the summoning order; thirdly, the documents and material placed on record were not taken into consideration; and lastly, original legal demand notice was not placed on record. 26. Taking the foregoing into consideration, this Court will initially deal with the issue of limitation for filing the complaint under Section 138 of the Act and therefore, it is pertinent to understand the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he due amount should be issued by the payee to the drawer within a time period of thirty (30) days from the date on which the cheque was returned. Moreover, the provision also provides the drawer with a statutory period of fifteen (15) days to repay the due amount from the date of receipt of the demand notice. However, if the drawer fails to pay the due amount within the said statutory period, then an offence under Section 138 of the NI Act is deemed to have been committed. 29. Moreover, once the offence is made out under Section 138 of the Act, the concerned Magistrate shall take cognizance of the offence as per Section 142 of the NI Act, only if the complaint is made in writing, by payee or holder in due course of time and within one month from the date on which the cause of action arises. 30. In light of the same, it is pertinent to unfold the series of events that took place between the respondent no. 2 and the petitioner, wherein the cheque presented by the respondent no. 2 was returned for insufficient funds vide the return memo dated 25th May, 2019. Thereafter, the respondent no. 2, adhering to the statutory requirement of 30 days mentioned under clause (b) of proviso to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that in computing the period of three months from the date of detention, which was 5-2-1971, before the expiration of which the order or decision for confirming the detention order and continuing the detention thereunder had to be made, the date of the commencement of detention, namely, February 5th has to be excluded; so done, the order of confirmation dated 5-5-1971 was made before the expiration of the period of three months from the date of detention. The Court held that there is no reason why the aforesaid rule of construction followed consistently and for so long should not be applied. For the aforesaid principle, the Court referred to the principle followed in English courts. The relevant discussion is hereunder: (SCC p. 641, para 5) 5. These decisions show that courts have drawn a distinction between a term created within which an act may be done and a time limited for the doing of an act. The rule is well established that where a particular time is given from a certain date within which an act is to be done, the day on that date is to be excluded. (See Goldsmiths' Co. v. West Metropolitan Rly. Co. [(1904) 1 KB 1, 5 : 72 LJKB 931 : 89 LT 428] , KB at p. 5.) This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of the NI Act. Therefore, according to the said provision, the complaint is to be filed on or before 10th August, 2019. However, the respondent no. 2 filed the complaint on 13th August, 2019. 36. It is the case of the respondent no. 2 that the limitation period of one month for filing the complaint expires on 10th August, 2019, on which the Court was not functioning and therefore, the respondent no. 2 was only able to file the complaint on the next working day i.e., 13th August, 2019. 37. Therefore, upon perusal of the Delhi High Court Calendar for the year 2019, which is on record, it is observed that the Court was closed on 10th August, 2019 (second Saturday), 11th August, 2019 (Sunday) and 12th August, 2019 (Idu l Zuha - holiday) and the next working day was on 13th August, 2019. Therefore, as per Section 4 of the Limitation Act, 1963, when the prescribed period expires on the day when the Courts are closed, the said application may be filed on the next working day. 38. It is a known principle of law that a special law overrides the general law and accordingly, the provisions of the NI Act, which is a special enactment, takes over the provisions of the Limitation Act, 1963, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to the same cannot be taken into account. 45. Coming to the issue of non-providence of sufficient reasons for summoning of the petitioner, it is observed that the respondent no. 2 filed pre-summoning evidence by way of an affidavit. It is pertinent to note that as per Section 145 of the 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. 46. Upon perusal of the summoning order, it is observed that the learned MM was satisfied with the sufficient causes being shown and accordingly, summons against the petitioner were issued. Therefore, the learned MM was correct in passing the summoning order against the petitioner and the learned ASJ was also right in upholding the said summoning order. 47. In view of the aforesaid discussions, this Court is of the view that the learned MM and the learned ASJ have not committed any error or illegality while passing the respective orders and therefore, this Court does not find any reasons to exercise its powers under Section 482 of the Code as the instant petition is bereft of any meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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