Case BriefsHigh Courts

Delhi High Court: Suresh Kumar Kait, J., reversed the order of the lower court issuing summons against the accused in a case under Section 138 of the Negotiable Instruments Act, holding that the lower courts fell in error while computing the period of limitation.

Factual Matrix

Petitioner had borrowed a sum of Rs 10 Lacs from respondent 2 who had lent the same vide two cheques amounting to Rs 5 lacs each. Further, it was stated that after approximately 3 years, respondent 2 approached petitioner for repayment of the loan amount, petitioner assured that he will return the entire amount and in order to discharge his part liability he issued a cheque amounting to Rs 10 lacs, which was dishonored with remarks “funds insufficient”.

Complainant stated that when the above-said was informed to the petitioner, he paid no heed to his complaint and thereafter, a legal demand notice was served upon him, yet petitioner failed to make payment, therefore a complaint was filed under Section 138 NI Act.

In view of the above complaint, summons were directed to be issued against the petitioner.

The above Order was challenged and the revisional court dismissed the said petition which has been challenged.

Contentions

Petitioners Counsel submitted that the Metropolitan Magistrate had no jurisdiction to take cognizance under Section 138 NI Act without that being accompanied by application under Section 142 (1) (b) NI Act for condoning the delay in filing the complaint.

Further, while taking cognizance of the complaint, Metropolitan Magistrate 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, directed to issue summons to the petitioner was illegal and without jurisdiction.

Analysis and Decision

Bench referred to the decision of Supreme Court in Econ Antri Ltd. v. Rom Industries Ltd., (2014) 11 SCC 769, while deciding the issue of calculation of limitation period with regard to proviso (c) to Sections 138 and 142(b) of the NI Act.

Further, the Court added that the ratio of the decision in Saketh India Ltd. v. India Securities Limited, (1999) 3 SCC 1 has to be applied to the case in hand.

Crux in the instant case was that the 15 days period with regard to legal demand notice lapsed. In terms of Supreme Court decision in Saketh India Ltd. v. India Securities Limited,  (1999) 3 SCC 1 one day has to be excluded for counting the one month limitation period and therefore, excluding the day of 19-06-2019, the limitation period started from 20-06-2019 and the limitation period expired with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period started.

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, Bench held that 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(1) (b) NI Act for condoning the delay.

Adding to the above, Court stated that the Revisional Court erroneously took into consideration two different dates for service of demand notice while computing the limitation period.

Therefore, the lower courts orders were set aside. [Simranpal Singh Suri v. State,  2021 SCC OnLine Del 236, decided on 01-02-2021]


Advocates for the parties:

Petitioner: M.S. Oberoi, Siddharth Khattar and Gaurav Rohilla, Advocates

Respondents: Izhar Ahmed, Additional Public Prosecutor for respondent 1

Anil Kumar Dhupar, Advocate for respondent 2

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., held that a complaint made in light of dishonor of cheque filed with a delay of one day cannot be dismissed as one day delay has to be excluded.

The instant application was filed under Section 482 Criminal Procedure Code, 1973 on being aggrieved by an Order passed by Court of Additional Sessions Judge and another order passed by Additional Chief Judicial Magistrate under Section 138 of the Negotiable Instruments Act whereby applicants’ complaint was dismissed on the ground of delay.

Factual Matrix

INSUFFICIENCY OF FUNDS

Accused/OP 2 had requested for money of Rs 6,00,000 from the complainant/applicant on personal need which was later transferred in the accused’s bank account. At the time of the return of the same, OP 2 gave to the applicant a Cheque which was dishonoured on account of insufficiency of funds.

In view of the above, a notice was sent to OP 2, on receiving the same, he again gave a cheque which was presented with a remark “Alteration /Correction on Instruments”. Despite notice OP 2 has so far not given the amount of the cheque, further on being aggrieved, the applicant filed the complaint.

Court concerned in light of the complaint summoned OP 2 after recording the statements under Sections 200 and 202 CrPC against which the OP 2 preferred revision before the Sessions Judge, Aligarh. Sessions quashed the summoning order holding that legal notice was not sent within the time prescribed and hence matter was remanded back to the Court concerned.

Section 142 of NI Act gives ample power to the Judge to condone delay.

Bench stated that in view of the provisions amended in the Negotiable Instruments Act way back on 06-02-2003, even if Court considers there was a delay in the lodgement of the complaint, applicant’s counsel satisfied the Court’s conscience that the complaint was in time as the period of one day has to be excluded.

Court observed that the respondent wanted to take advantage of loopholes in the Act, hence Judge was directed to pass a reasoned summoning order to the respondents who evaded to appear even before this Court.

In view of the above discussion, the impugned order was set aside and quashed. [Pankaj Sharma v. State of U.P., 2020 SCC OnLine All 1339, decided on 22-09-2020]