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Courts to not take notice of complaint u/s 138 of NI Act unless accompanied with an application u/s 142 of the Act : Himachal Pradesh High Court

One day has to be excluded for counting the one month limitation period under the Negotiable Instruments Act, 1881. The High Court bench consisting of J. Suresh Kumar Kait in the matter of Simranpal Singh Suri v. State & Anr. [CRL.M.C. 2536/2020 & CRL.M.A. 17950/2020] held that the lower courts had erred in their findings and allowed to appeal claiming the exception of limitation period.

The petitioner had borrowed a sum of Rs. 10 Lacs from the respondent who had lent the same via two cheques. After approximately three years, the respondent approached the petitioner for repayment of loan amount, to which petitioner assured that he would return the entire amount and discharged his liability by issuing cheques, which was dishonored on presentation in the bank with the remarks “funds insufficient” and was returned. The complainant stated that when he informed the petitioner about the dishonor of the cheque, he paid no heed and thereafter, the complainant served a legal demand notice, after which the petitioner again failed to make the payment. The complainant under Section 138 of the Negotiable Instruments Act instituted against the petitioner before the learned Metropolitan Magistrate who issued summons against the petitioner. This order was challenged by the petitioner in a Criminal Revision Petition, wherein again the petition was dismissed with a cost of Rs. 50,000/- which has been challenged in the present petition.

The Learned Counsel for the petitioner submitted that the Metropolitan Magistrate had no jurisdiction to take cognizance of the complaint u/s 138 of the NI Act without it being accompanied by an application under Section 142(b) of the same, condoning the delay in filing the complaint. The counsel added, relying on the case of Rameshchandra Ambala Joshi v. State of Gujarat [(2014) 11 SCC 759], that the Magistrate did not take note of the fact that the complaint was filed beyond the limitation period and did not rightly calculate the days.

The High Court, relying on the case of M/s Saketh India Limited & Ors. v. M/s India Securities Limited [(1999) AIR Supreme Court 1090], found that The 15 days notice period in this case commenced on 04.06.2019 and lapsed on 18.06.2019….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, 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 (b) NI Act for condoning the delay”.

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