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K.C.NANU versus N.VIJAYAN

High Court of Kerala

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K.C.NANU v. N.VIJAYAN - CRL A No. 217 of 1999 [2006] RD-KL 3950 (20 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 217 of 1999()

1. K.C.NANU
... Petitioner

Vs

1. N.VIJAYAN
... Respondent

For Petitioner :SRI.P.K.SURESH KUMAR

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice J.B.KOSHY

Dated :20/12/2006

O R D E R

J.B. KOSHY, J.

Crl.Appeal No. 217 of 1999

Dated this the 20th day of December, 2006

Judgment Contending that cheque issued by the respondent for Rs.10,000/- in lieu of valid consideration was dishonoured for insufficiency of funds, a complaint was filed by the appellant under section 138 of the Negotiable Instruments Act. Complaint was rejected and accused was acquitted as cheque was presented after six months. According to the appellant, date of issue shall be excluded in calculating six months period in presenting the cheque.

2. Section 138 proviso (a) reads as follows:

"the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier." Period of limitation has to be reckoned from the date on which the cheque was drawn. Date of cheque cannot be excluded in calculating the period of six months prescribed in section 138. Provisions of Negotiable Instruments Act as held by the Apex Court in Jiwanlal v. Crl.A.No.217/99 2 Rameswarlal (AIR 1967 SC 1118), K.V. Muhammed Kunhi v. P. Janardhanan (1998 Crl.L.J. 4330 (Kerala)) and the words 'within the period of six months' assume importance and section 138 proviso (a) is clear that the date of limitation will commence from the date put in the cheque or instrument. It is true that 'month' means British calendar month as defined under section 3 (35) of General Clauses Act and not Lunar month. Here, the cheque was dated 16.11.1994. It was presented only on 16.11.1994. It should have been presented on or before 15.11.1994. Hence, it was not presented within 'six months of issue'. It is true that the Apex Court in Saketh India Ltd. and others v. India Securities Limited ((1999) 3 SCC 1) held that for calculating the period of one month for filing the complaint will be reckoned from the day immediately following the day of expiry of the period of 15 days from the date of receipt of the notice (as envisaged in proviso (a) to section 138) by the drawer. That is in view of the wordings in section 142 (b) of Negotiable Instruments Act and section 12 (1) of Limitation Act, 1963. Section 12 (1) specifically provides that in computing the period of limitation for any suit or application, the day from which such period is to be reckoned shall be excluded. In this case, cheque was presented after six months of the date of the cheque. Hence, trial court rightly rejected the complaint. I also Crl.A.No.217/99 3 note that notice sent to the respondent was not served so far. There is no merit in the appeal. Appeal dismissed. J.B.KOSHY

JUDGE

vaa

J.B. KOSHY, J.

CRL.APPEAL No.217/99 Judgment

Dated:20th December, 2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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