M/S TEAM PAAREL IMPORTS AND EXPORTS PVT LTD. v. V.S. RAVI and THE STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933** **CRA.No. 158 of 2005 ( ) ----------------------CC.1554/2000 of J.M.F.C.-II, ERNAKULAM** **------------------** ## **APPELLANT(S)/PETITIONER/COMPLAINANT :-** **-----------------------------------------** **M/S.TEAM PAAREL IMPORTS AND EXPORTS PVT LTD., NEDUMCHALIL BUILDING MULLASSERY CANAL ROAD, KOCHI-682 011 REPRESENTED BY ITS MANAGER AND AUTHORIZED REPRESENTATIVE-A.J.VARGHEESE.** **BY ADV. SRI.THOMAS ANTONY SRI.PRAKASH M.P. SRI.K.M.JAMALUDHEEN** ## **RESPONDENT(S)/ACCUSED AND THE STATE :-** **----------------------------------------** **1. V.S.RAVI, MANAGING PARTNER, CHEERAKKATTIL MATCH INDUSTRIES, PAZHOOR EAST P.O. PIRAVOM(WITHIN THE LOCAL LIMITS OF THE PIRAVOM POLICE STATION ERNAKULAM DISTRICT).** **2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **R1 BY SRI.K.T.SHYAMKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.158 of 2005 -----------------------------Dated this the 16[th] day of January 2012** ## **J U D G M E N T** The complainant, a private limited company is in appeal. The complaint was filed under Sec.138 of N.I.Act. The accused therein was acquitted by the learned Magistrate under Sec.255(1) Cr.P.C. The case of the complainant is that there was business transaction between the complainant and the accused. Towards the articles purchased by the accused some amount was due from the accused. Deducting a sum of Rs.10,000/-, for the balance amount of Rs.45,000/-, Ext.P4 cheque dated 22.1.2000 was issued by the accused which on presentment was bounced due to insufficiency of fund. On receipt of the dishonour memo, statutory notice was sent. The amount was not paid. Hence, the complaint was filed. 2. The Manager of the complainant company was Crl.A. No.158 of 2005 -: 2 :- examined as PW1 and Exts.P1 to P9 were marked. The learned Magistrate acquitted the accused on the ground that the complaint was filed beyond the period prescribed under Sec.142(b) of the N.I.Act. 3. The learned counsel for the complainant submits that notice was received by the accused on 3.4.2000. Hence, the accused had time to pay the amount till the midnight of 18.4.2000. Therefore, the cause of action would arise only on and from 19.4.2000. The complaint was filed on 19.5.2000 and hence the learned counsel submits that the complaint was filed within the time prescribed. 4. The aforesaid argument advanced by the learned counsel for the appellant is resisted by the learned counsel appearing for the respondent/accused contending that the complainant is not entitled to exclusion of two days and as such the complaint should have been filed on or before 18.5.2000 whereas the complaint was admittedly filed on 19.5.2000. The Supreme Court decision in **Saketh India** Crl.A. No.158 of 2005 -: 3 :- **Ltd.** v. **India Securities Ltd.** reported in [1999 (1) KLJ 820 (SC)] has been relied upon by Mr.M.P.Prakash, the learned counsel appearing for the complainant. That was a case where the statutory notice was served on the accused on 29.9.1995. As per Sec.138(c) the accused was required to make the payment of the said amount within 15 days. The amount was not paid. Hence it was held that the cause of action for filing the complaint arose on 15.10.1995. The complaint was filed on 15.11.1995. It was held by the Apex Court in that case : “.... 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. The period of 15 days in the present case expired on 1410-1995. So cause of action for filing complaint would arise from 15-10-1995. That day (15[th] October) is to be excluded for counting the period of one month. Complaint is filed on 15-11-1995. The result would be that the complaint filed on 15[th] November is within time.” Crl.A. No.158 of 2005 -: 4 :- Learned counsel appearing for the complainant would submit that the facts of that case are entirely identical to the facts of the present case and as such there can be no doubt that the complaint filed on 19.5.2000 is well within time. This decision was followed by this Court in **Chandradasan** v. **George** reported in [2003 (3) KLT 151]. In that case the period of 15 days expired by 1.9.1996 and so it was found that the cause of action arose on 2.9.1992. It was held that in computing the period of one month the first day ie;2.9.1996 has to be excluded and the last day, 2.10.1996 has to be included and thus it was found that the period of one month expired by 2.10.1996. Since in that case 2.10.1996 was a holiday it was held that the complaint filed on 3.10.1996 was well within time. 5. Learned counsel for the respondent/accused would submit that in **SIL Import, U.S.A.** v. **Exim Aides Silk Exporters** reported in [1999 (2) KLT 275 (SC)] it was held by the Apex Court that if notice sent by fax was to be Crl.A. No.158 of 2005 -: 5 :- treated as the notice in writing contemplated in the section, the cause of action should have arisen on the expiry of 15 days (ie;26.6.1996) and the period of limitation for filing the complaint expired on 26.7.1996. It was held that the last day when the respondent could have filed the complaint was 26.7.1996. But in that case, the complaint was filed only on 8.8.1996 and so it was held that the court had no jurisdiction to take cognizance of the offence. 6. Learned counsel for the complainant would submit that the decision in **Saketh's case** was not distinguished or overruled by the Apex Court in **SIL Import's case** cited supra. The decision in **SIL Import's case** has to be distinguished on facts especially because in that case the complaint was filed so many days after the expiry of the period prescribed, the learned counsel for the complainant submits. The decision in **Jossy Kondody** v. **Chacko Thomas** reported in [1999 (3) KLT 207] was also cited before me, where the decision in **SIL Import's case** Crl.A. No.158 of 2005 -: 6 :- cited supra was also referred. Since the decision in Saketh India Ltd was not referred in SIL Import's case, the learned Single Judge did not follow the decision in SIL Import's case. Hence the decision in Jossy Kondody is not applicable to the facts of this cases. **7** . Saketh India Ltd. (supra) was followed by the apex court in **Jindal Steel and Power Ltd.** v. **Ashoka Alloy Steel Ltd.** [(2006) 9 SCC 3400] where it was held: “2. By the impugned order, the High Court has quashed the prosecution under S.138 of the Negotiable Instruments Act, 1881 (for short “the Act”) and S.420 of the Penal Code, on the sole ground that the complaint was filed two days after the expiry of limitation. In the present case, notice was sent under S.138 of the Act on 4.1.1997, which was served on the accused on 10.1.1997, giving him 15 days' time for making payment, which expired on 25.1.1997. Cause of action to file the complaint accrued on 26.1.1997, which day has to be excluded in computing the period of limitation, as required under S.12(1) of the Limitation Act, 1963. Therefore, the limitation would be counted from 27.1.1997 and the complaint was filed on 26.2.1997, within a period of one month from that date, as such, the same was filed well within time. We find that the point is concluded by a judgment of this Court in Saketh Crl.A. No.158 of 2005 -: 7 :- India Ltd. v. India Securities Ltd. (1999(2) KLT SN 14 (C.No.13) SC) in which case taking into consideration the provisions of S.12(1) of the Limitation Act, it was laid down that the day on which cause of action had accrued has to be excluded for reckoning the period of limitation for filing a complaint under Section 138 of the Act. In the present case, after excluding the day when cause of action accrued, the complaint was filed well within time; as such the High Court was not justified in holding that there was two days' delay in filing the complaint. For the foregoing reasons, we are of the view that the High Court was not justified in quashing prosecution of the respondents.” It is submitted by the learned counsel for the complainant that Jindal Steel and Power Ltd. (supra) was referred by the apex court in **Subodh S. Salaskar** v. **Jayprakash M. Shah** [2008 (3) KLT 616]. Therefore, it is argued that as Saketh India Ltd. was followed by the apex court in the two later decisions cited supra, the argument advanced on behalf of the accused relying upon the decision in SIL Import's case cannot be sustained. The learned counsel for the accused would submit that in the light of the Full Bench decision of this Court in **Joseph** v. **Special Tahsildar** reported in Crl.A. No.158 of 2005 -: 8 :- [2001 (1) KLT 958 (F.B.)] the later decision is to be followed. It was held by the Full Bench : “Where there is an apparent conflict between an earlier and a later decision of the Apex Court by Benches consisting of equal number of Judges, the later decision must prevail over the earlier decision.” In Jindal Steel and Power Ltd. (supra) the statutory notice was served on the accused on 10.1.1997 giving him 15 days time for making payment which expired on 25.1.1997, it was held that the cause of action to file the complaint accrued on 26.1.1997. It was held that, that date has to be excluded in computing the period of limitation and so the limitation should be counted from 27.1.1997. As such the complaint filed on 26.2.1997, within one month from that date was held to be within time. In the case on hand the time for payment expired on 18.4.2000. Thus cause of action would arose on 19.4.2000. If that day is excluded, the complaint filed on 19.5.2000 should be held to be well within time. Crl.A. No.158 of 2005 -: 9 :- 8. Since Saketh India Ltd. (supra) was followed by the apex court in the two later decisions cited supra, I have no hesitation to hold that the complaint filed on 19.5.2000 is well within the time and as such, the verdict of acquittal given by the learned Magistrate holding that the complaint was filed beyond the time prescribed is unsustainable. That finding is set aside. 9. It is submitted by the learned counsel for the complainant that sufficient materials are available to hold that there was business transaction between the complainant and the accused and that the accused owed money to the complainant. Execution of the cheque was proved by PW1. Hence the conviction must necessarily follow. The case was filed in the year 2000. More than 11 years have elapsed. That also has to be considered by the court. In the result, this Crl.A. is disposed of as stated below :- Crl.A. No.158 of 2005 -: 10 :- In reversal of the order of acquittal, the respondent/accused is found guilty of the offence punishable under Sec.138 of N.I.Act and he is convicted thereunder. He is sentenced to pay a fine of Rs.50,000/and in default, he will undergo S.I. for one month. The accused/respondent is given two months time to pay the fine amount. If not paid within the time prescribed the learned Magistrate will execute the sentence. **N.K.BALAKRISHNAN, JUDGE.** Jvt