Satheeshan @ Shreeshan v. State of Kerala and Mani Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 CRL.MC NO. 6332 OF 2022 AGAINST THE COMPLAINT IN ST NO.1970/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS, CHANGANACHERRY** ## **PETITIONER/ACCUSED :** **SATHEESHAN @ SHREESHAN, AGED 63 YEARS, S/O.ARAVINDHAKSHAN, KRISHNAPRIYA HOUSE, RAMNAGAR, POONKUNNAM P.O, THRISSUR, PIN CODE - 680002 BY ADVS. SAYED MANSOOR BAFAKHY THANGAL SHIBU JOSEPH** ## **RESPONDENTS/COMPLAINANT :** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA**| |**2**|**MANI ANTONY,**| ||**AGED 67 YEARS**| ||**CHIRAVALAYIL HOUSE, PERUNNAI,**| ||**CHANGANASSERY,**| ||**KOTTAYAM, PIN - 686101**| **BY SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.6332 of 2022 2 ## **“C.R.”** ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure to quash Annexure-A1 complaint, which led to registration of S.T.No.1970 of 2020 pending before the Judicial First Class Magistrate Court, Changanacherry. The petitioner herein is the accused before the trial court and the respondents are State of Kerala as well as the original complainant in the above case. 2. A question of subtle importance crops up for consideration is; How to calculate the period of limitation for filing complaint under Section 142 of the Negotiable Instruments Act alleging commission of offence punishable under Section 138 of the NI Act? 3. Though notice served on the second Crl.M.C.No.6332 of 2022 3 respondent, he did not appear. 4. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor representing the State. 5. The learned counsel for the petitioner would submit that the legal notice issued in this case was accepted by the accused on 22.04.2020. Thereafter, the complaint was filed on 08.06.2020. Therefore, it is argued that, the complaint was filed after expiry of the statutory period without any petition to condone delay. It is submitted further that as per Section 142(1)(b) of the Negotiable Instruments Act(hereinafter will be referred as 'NI Act' for convenience), the complaint shall be filed within one month of the date on which the cause of action arises under clause(c) of the proviso to Section 138(b). Therefore, there is one day's delay in lodging the complaint which was filed on 08.06.2020 and therefore, the cognizance taken in this matter without condoning the Crl.M.C.No.6332 of 2022 4 delay is illegal and as such, the complaint is liable to be quashed. 6. In view of this argument, how to calculate the period of limitation in filing complaint under Section 142 of the Negotiable Instruments Act alleging commission of offence punishable under Section 138 of the NI Act? is the relevant question. It is to be noted that the Apex Court dealt the said issue in a three Bench decision reported in [2013(3) KHC 659], **Econ Antri Ltd. v. Rom Industries Ltd. and Another** , where it has been held referring to another decision reported in [1999 (3) SCC 1], [1999 (1) KLJ 820], [1999 KHC 456], and [1999 (2) KLT SN 13], **Saketh India Ltd. and Others v. India Securities Ltd.** (where the relevant provisions of the General Clauses Act and the Limitation Act also considered) that _it is not possible to hold that the word 'of' occurring in S.138(c) and 142(b) of the NI Act is to be interpreted differently as against the word 'from'_ Crl.M.C.No.6332 of 2022 5 _occurring in S.138(a) of the NI Act; and that for the purposes of S.142(b), which prescribes that the complaint is to be filed within 30 days of the date on which the cause of action arises, the starting day on which the cause of action arises should be included for computing the period of 30 days. As held in Ex parte Fallon, 1793(5) Term Rep 283 the words 'of', 'from' and 'after' may, in a given case, mean really the same thing. As stated in Stroud's Judicial Dictionary, Vol.3 1953 Edition, Note(5), the word 'of' is sometimes equivalent of 'after'._ Further, it has been held that for the purpose of calculating the period of one month, which is prescribed under Section 142(1)(b) of the NI Act, the period has to be reckoned by excluding the date on which the cause of action arose. Thus, it was held that SIL Import USA( **SIL Import USA v. Exim Aides Silk Exporters, Banglore** , [1999 KHC 317] 1999 (2) KLT 275], 1999 (2)KLJ NOC 9], AIR 1999 SC 1609] did not lay down the correct law and any decisions Crl.M.C.No.6332 of 2022 6 of the Apex Court which took a view contrary to the view taken in **Saketh** 's case (Supra) do not lay down the correct law. 7. Thus the law declared in **Econ Antri Ltd.'** s case(supra) would govern while calculating the period of limitation in filing a complaint alleging commission of offence under Section 138 of the NI Act. 8. In **Saketh** 's case (supra), the facts dealt by the Apex Court was regarding cheques dated 15.03.1995 and 16.03.1995 which were bounced and notice was served on the accused on 29.09.1995. The Apex Court found that as per proviso to Section 138 of the NI Act that the accused was required to make payment of the said sum within 15 days of the receipt of the notice, i.e. on or before 14.10.1995. (Here also one day, i.e. on 29.09.1995 excluded in calculating 15 day's time). Since the accused failed to pay the amount on 14.10.1995, the cause of action to file complaint arose on Crl.M.C.No.6332 of 2022 7 15.10.1995. But the date, '15.10.1995' was excluded and therefore, complaint filed on 15.11.1995 was held within time, by calculating one month's period contemplated under Section 142(1)(b) of the NI Act from 16.10.1995. 9. In this connection, it is apposite to refer Section 138(c) and 142(1)(a) and (b) of the NI Act, as under: “138. Dishonour of cheque for insufficiency, etc., of funds in the account.-xxx (a) xxx (b) xxx (c) the drawer of such cheque fails to make the payment of the said amount of money 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. xxx 142(1). Cognizance of offences:- xxx (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; Crl.M.C.No.6332 of 2022 8 (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. [Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.] 10. Thus, the principle regarding limitation while issuing legal notice under Section 138(b) of the NI Act and filing complaint under Section 142(1)(b) of the NI Act is settled in **Econ Antri Ltd.'** s case(supra). That is to say, while counting the period of 15 days to make payment, the date on which the legal notice was received, has to be excluded. More precisely, while calculating time contemplated under Section 138(c) of the NI Act and 15 day's time has to be counted from the next day of the date of receipt of notice. Similarly, while calculating one month's time to lodge complaint as provided under Section 142(1)(b) of the NI Act, the date on which the cause of action arises has to be excluded and the period Crl.M.C.No.6332 of 2022 9 has to be counted from the next day onwards. 11. Applying the said principle, in this matter, the accused herein accepted the notice on 22.04.2020. Then the accused was required to make the payment of the said amount within 15 days from the date of receipt of notice i.e. on or before 07.05.2020, since 22.04.2020, the date of receipt of notice has to be excluded, while calculating 15 day's time under Section 138(c) of the NI Act. Thus, the cause of action to file the complaint arose on 08.05.2020. But, 08.05.2020 has to be excluded as per the ratio in **Econ Antri Ltd.'** s case(supra). As such, the period of one month provided under Section 142(1) (b) of the NI Act shall be counted from 09.05.2020. If so, the complaint in this matter ought to be filed on or before 08.06.2020 counting the period of one month from 09.05.2020. If so, the complaint filed on 08.06.2020 is well within time. Crl.M.C.No.6332 of 2022 10 In view of the matter, the complainant found to be filed within time and therefore, the cognizance and other proceedings are within the sweep of the power of the Magistrate Court and no illegality to be found therein. Therefore, there is no merit in this Crl.M.C. and it is, accordingly, dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj Crl.M.C.No.6332 of 2022 11 ## **APPENDIX OF CRL.MC 6332/2022** **PETITIONER ANNEXURES Annexure 1 THE CERTIFIED COPY OF THE COMPLAINT DATED 08-06-2020 IN S.T. NO.1970 OF 2020 ON THE FILES OF THE JUDICIAL FIRST-CLASS MAGISTRATE COURT Annexure 2 THE TRUE PHOTOSTAT COPY OF THE LAWYER NOTICE DATED 15-04-2020 Annexure 3 THE TRUE PHOTOSTAT COPY OF THE REPLY NOTICE DATED 04-05-2020**