IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 CRL.A.No. 843 of 2001() ----------------------- CC.257/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... APPELLANT(S): -------------- JUSTIN FRANCIS, S/O. FRANCIS, MAHADEVARVILA VEEDU, KORODE DESOM, KORODE VILLAGE. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): --------------- 1. THANKAPPAN, S/O. KESAVA PILLA, PALLATHUVILAKOM VEEDU, AYIRA DESAM, KARODE VILLAGE. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. K.L. LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.843 of 2001 ---------------------------------------------- Dated, 26th February, 2009. JUDGMENT This appeal is field by the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, as he is aggrieved by the order of acquittal passed by the trial court under section 255(1) Cr.P.C. 2. The case of the appellant/complaint is that the accused received Rs.40,000/- from the complainant on 1.11.97 and towards the discharge of the said liability, the accused issued a cheque dated 10.11.97 at the residence of the complainant. According to the complainant, the said cheque when presented for encashment, was dishonoured due to the reasons of “insufficient funds” and “payment stopped by the drawer”. According to the complainant, on receiving the dishonour memo, he caused to send a lawyer notice to the accused informing him the dishonour of the cheque and demanding payment of the amount covered by the dishonoured cheque. According to the complainant, in spite of the receipt of lawyer notice, the accused failed to make payment and hence he approached the court below by filing a private complaint to prosecute the accused for the offence under section 138 of the Crl.a.843/01 -:2:- N.I.Act. On appearance of the accused, the particulars of the offence were read over and explained to him, to which he pleaded not guilty, as a result of which, further trial was conducted by the learned Magistrate during which PWs 1 to 3 were examined from the side of the complainant and Exts.P1 to P10(b) documents were produced and marked. The incriminating circumstances, which emerged during the evidence of complainant, when put to the accused under section 313 Cr.P.C., he denied the same. He took a stand of total denial. No evidence, either oral or documentary, was adduced by the defence. Based upon the materials on records and rival pleadings, the trial court formulated 5 points for its determination, among which the 4th issue was “whether the complaint is barred by limitation?”. Finally, the trial court found that the complaint is barred by limitation and hence, offence under section 138 will not stand against the accused. On the basis of such finding it is further found that the accused is not guilty for the offence under section 138 of the Act and accordingly he is acquitted under section 255(1) Cr.P.C. It is the above finding and order of acquittal challenged in this appeal. 3. Though notice was served on the Ist respondent/accused, he has not chosen to appear before this Court or make arrangements to defend the appeal. Thus, I have heard Sri R.T.Pradeep, the learned counsel appearing for the appellant. Crl.a.843/01 -:3:- 4. The learned counsel submitted that out of the 4 main issues considered by the court below, except Point No.4, all other issues were found in favour of the complainant. The learned counsel further submitted that the finding of the court below that the complaint is barred by limitation, is factually illegal and incorrect and the same is liable to be interfered with. In support of the above submission, the learned counsel relied upon the decision of the Apex Court reported in Saketh India Ltd. v. India Securities Ltd. (1999(2) KLT 14 (C.No.13). Besides the above decision, the learned counsel also invited my attention to the decision of the Culcatta High Court in Santa Priya v. Udaya Sankar Das (1994 (2) KLT 404). Thus, According to the learned counsel, the finding of the trial court is absolutely illegal and incorrect and diametrically opposed to the dictum laid down by the Supreme Court. 5. I have carefully considered the arguments advanced by the learned counsel and also perused the materials on record and also the decisions cited supra. Going by the impugned judgment, it can be seen that even according to the calculation adopted by the court supposed to be in accordance with the provisions of Section 138 of the Act, what discernible is that the complaint was filed with the delay of one day and as such it is barred by limitation. In this juncture, it is relevant to note that Crl.a.843/01 -:4:- by the amendment brought to Section 142 of the N.I.Act ,as per Act 55/2002 by incorporating the proviso, it is made clear that 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 the complaint within such period. So, the law making authority who incorporated clause (b) and (c) to Section 138, has subsequently, by making amendment to Section 142, taken away the strict limitation policy with respect to the period of limitation , and the competent court on satisfaction, the delay can be condoned. According to me, the question involved in this case has to be examined in the background of the amendment brought to Section 142 of the N.I.Act. 6. Regarding the factual position, there is no dispute. As observed by the trial court and as discussed and observed by the trial court in its judgment, Ext.P1 cheque when presented for encashment on 17.2.98 was dishonoured and the dishonour memo was received by the complainant on 5.3.98. Consequent to the receipt of Ext.P2 dishonour memo on 5.3.98, the complainant had caused to send Ext.P5 lawyer notice dated 19.3.98. Ext.P6 would show that the notice was sent on 19.2.98. Further it is proved that accused received the lawyer notice on 21.3.98 as evidenced by Exts.P10, P10(a) and P10(b). So the question to be considered is how the period has to be calculated. According to the Crl.a.843/01 -:5:- learned Magistrate, as Ext.P5 notice was served on the accused on 21.3.98, the cause of action for filing the complaint had arisen on 5.4.98. Therefore the complaint ought to have been filed on or before 4.5.98. But in the present case, it was filed only on 5.5.98. Therefore, according to the learned Magistrate, the complaint was field after the prescribed limitation period of 30 days from the cause of action date. Going by the impugned judgment, especially, paragraph 8 of the judgment, it appears to me that the contentions raised before this court with respect to the period of limitation was not urged before the court below and no finding of the Magistrate was canvassed on the basis of the points raised on the strength of the above authorities. 7. As pointed out earlier, though notice was served, the Ist respondent/accused has not appeared before this Court and no counter argument is advanced. In the decision in Saketh India Ltd. v. India Securities Ltd. (cited supra), the Apex Court has held: “Where a particular time is given from a certain date within which an act is to be done, the day on that day is to be excluded; the effect of defining 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. The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in S.12(1) Crl.a.843/01 -:6:- and (2) of the Limitation Act, 1963. 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”. (Emphasis supplied) Thus According to the Apex Court, for calculating the period of one month for filing the complaint, the days would 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 learned Counsel, on the strength of the Calcutta High Court decision, submitted that the cause of action arose only from the date of knowledge the bearer of the cheque received regarding the receipt of lawyer notice by the accused. If the above decision is adopted in this case, according to the learned counsel, absolutely, there is no delay at all and therefore, the learned Magistrate, especially, when the points 1 to 3 were found in favour of the complainant ought to have convicted the accused instead of holding that the complaint is barred by limitation. However, as pointed out earlier, this legal position, was not urged before the learned Magistrate and this position was not canvassed before the learned magistrate. It is Crl.a.843/01 -:7:- also to be taken note of the fact that the accused has not appeared before this Court and no argument is advanced. Therefore, according to me it is only just and proper to remit back the matter for fresh consideration of the trial court regarding the question of limitation, after hearing both the complainant as well as the accused. 8. In the result, the finding of the court below on Point No.4 is set aside. The complainant is directed to appear before the court below on 26.3.2009 on which day the court is directed to take up the complaint on file and to proceed with the same and to decide the question in the light of the above authorities, after giving opportunities to the parties. As the occurrence was on 1.11. 97 and the case related to the year 1998, the court below is directed to expedite and dispose of the matter within a period of 6 months from 26.3.2009. The Registry is directed to send back the records immediately. The appeal is accordingly disposed of remanding the matter to the court below. V.K.MOHANAN, JUDGE kvm/- Crl.a.843/01 -:8:- V.K.MOHANAN, J. CRL.A.No.843 OF 2001 Judgment Dated:26.2.2009