Jayant Shivpal Banchhode vs Chintamani Dairy & Breeding Farm Pvt. Ltd. & Ors.

“3.

Mr. Anand S. Patil, learned Advocate for the Petitioner, submits that the Petitioner challenges the order dated 23rd December, 2022, passed by the Trial Court on Exhibits 1 and 72 in Regular Criminal Case No.445 of 2015 as confirmed by the Revisional Court in Criminal Revision Application No.30 of 2023, to the limited extent of discharging Accused Nos.1 and 2 of the offence punishable under Section 138 of the NI Act. He clarifies that the Petitioner gives up the challenge to the discharge of Accused Nos.1 and 2 in respect of the offence punishable under Section 420 of the IPC.

4.

Mr. Anand S. Patil, learned Advocate for the Petitioners, and Mr. Jayant J. Bardeskar, learned Advocate for Respondent Nos.2 and 3, have addressed this Court on the issue of discharge of the accused Nos.1 and 2 in respect of the offence punishable under Section 138 of the NI Act.”

“4.

Learned counsel for the appellants submitted that the simple point to be considered in the present case is whether the Trial Court could have issued summons when admittedly the petition under the Act was filed five days beyond the maximum period of 30 days from the cause of action. It was submitted that the Trial Court, in fact, has gone totally beyond the records and has categorically stated in the order issuing summons that the petition filed by the respondent was within the limitation period. Learned counsel submitted that though there is power to condone the delay under proviso to Section 142 of the Act, but the same has to be exercised only upon a proper application/affidavit filed by the complainant disclosing reasons for such delay.

7.

In the present case, the same has absolutely not been done. The High Court opining that though there may have been delay but still the Trial Court is well within its power to condone the delay and in terms of Section 142(b) of the Act, filing of an application for condonation of delay is not a statutory mandate, again in our considered view, is erroneous.

10.

After the order was dictated, we have been informed that the civil proceedings for recovery of the amount have been instituted by the respondent. We would only observe that the same will not be prejudiced in any manner by the present order.”

“38.

In the circumstances, it was held in Vasantlal Ranchhoddas Patel case [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] that the day on which the goods were seized has to be excluded in computing the period of limitation contemplated under sub-section (2) of Section 110 and therefore the notice was issued within the period of limitation. It is pertinent to note that under Section 110(2) of the Customs Act, notice had to be given within six months of the seizure of the goods. Similarly, under Section 142(b) of the NI Act, the complaint has to be made within one month of the date on which cause of action arose. The view taken in Vasantlal Ranchhoddas Patel [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] meets with our approval.

39.

In view of the above, it is not possible to hold that the word “of” occurring in Sections 138(c) and 142(b) of the NI Act is to be interpreted differently as against the word “from” occurring in Section 138(a) of the NI Act; and that for the purposes of Section 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 Fallon, ex p [(1793) 5 TR 283 : 101 ER 159] 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 Edn., Note (5), the word “of” is sometimes equivalent of “after””.

“3. Definitions

(1)

to (34) …

(35)

“month” shall mean a month reckoned according to the British calendar;”

“12. Exclusion of time in legal proceedings

(1)

In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.”

“7.

The aforesaid principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section 12(1) specifically provides that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. Similar provision is made in sub-section (2) for appeal, revision or review. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897 which, inter alia, provides that in any Central Act made after the commencement of the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from” and for the purpose of including the last in a series of days or any other period of time, to use the word “to”.

8.

Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act. 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 14-10-1995. So cause of action for filing complaint would arise from 15-10-1995. That day (15th 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 15th November is within time.”

“… The next contention raised by counsel for the petitioners is that the complaint was not filed within a month from the date of expiry of 15 days, the time given for payment and as such, the complaint has to be dismissed, on the ground that it was filed beyond the period of limitation.

According to the petitioners, they received the notice on December 27, 1993, and the 15th day expires on January 11, 1994. So the cause of action arises on January 12, 1994. According to counsel for the petitioners, the term “one month” means 30 days and, therefore, the 30th day falls on February 10, 1994, and so, on or before February 10, 1994, the complaint ought to have been filed. But, in the instant case, the complaint was filed only on the 31st day, i.e., on February 11, 1994.

Arguing contra, counsel for the respondent/complainant would submit that one month means an English calendar month. Therefore, “one month” in this case expires on February 11, 1994, since the cause of action arose on January 12, 1994. Therefore, the complaint was filed within the period of limitation. ...”

“6.

This leads us to the question whether the petition was filed beyond three months plus thirty days. There is no dispute that if the petition had been filed within a period of three months plus thirty days, the delay has to be condoned as sufficient cause was shown by the appellant for condonation of the delay. But the High Court has accepted the contention of the respondent that the period of three months plus thirty days expired on 10-3-2008 and, therefore, the petition filed on 11-3-2008 was barred. Therefore, the following questions arise for our consideration:

(i)

What is the date of commencement of limitation?

(ii)

Whether the period of three months can be counted as 90 days?

(iii)

Whether only three months plus twenty-eight days had expired when the petition was filed as contended by the appellant, or whether petition was filed beyond three months plus thirty days, as contended by the respondent?

Re : Question (ii)

14.

The High Court has held that “three months” mentioned in Section 34(3) of the Act refers to a period of 90 days. This is erroneous. A “month” does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty-one days. If the month is February, the period will be twenty-nine days or twenty-eight days depending upon whether it is a leap year or not.

15.

Sub-section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-section (3) uses the words “three months” while prescribing the period of limitation and the proviso uses the words “thirty days” while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as “three months” and “one month” respectively or by describing the periods as “ninety days” and “thirty days” respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month.

16.

Section 3(35) of the General Clauses Act, 1897 defines a “month” as meaning a month reckoned according to the British calendar.

17.

In Dodds v. Walker [(1981) 1 WLR 1027 : (1981) 2 All ER 609 (HL)] the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Salma Khatoon v. State of Bihar [(2001) 7 SCC 197] .

18.

Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days.”