Computation of Period for Filing a Complaint:

In a particular case, a cheque was presented for the second time but was returned unpaid. However, a legal notice for demand was not issued within thirty days from the date of receipt of information from the bank regarding the cheque's return. Although re-presenting the cheque for encashment is not subject to questioning, failing to issue a demand notice within the prescribed time renders the complaint non-maintainable. Therefore, refusing to quash the proceedings was improper.

According to law, the complainant must issue a notice to the drawer of the cheque within 30 days of receiving information about the cheque's dishonor. In this case, the complainant sent a notice by Registered Post with A.D., but the acknowledgment card was not returned. When the complainant inquired with the postal authorities on June 30, 2009, it was confirmed that the notice dated May 18, 2009, had been delivered on May 19, 2009. Consequently, the complaint filed on July 4, 2007, was within the limitation period. It was held that unless the complainant is aware of the delivery or refusal to accept the notice, they would not be in a position to file a complaint.

Section 141 of the Negotiable Instruments Act (NI Act):

The complaint must be filed within one month from the date the cause of action arises. Under Section 3(35) of the General Clauses Act, a month is calculated according to the British Calendar. Therefore, the one-month period for filing a complaint begins the day immediately following the expiry of 15 days from the drawer's receipt of the notice.

This aligns with the general principle that when a specific period is allowed from a particular date, that date is excluded. Both Section 9 of the General Clauses Act and Section 12(1) of the Limitation Act affirm this principle.

Section 142 of the NI Act specifies that notwithstanding the Code of Criminal Procedure, no Court may take cognizance of an offence punishable under Section 138 unless a written complaint is filed by the payee or holder in due course within one month from the date the cause of action arises under clause (c) of the proviso to Section 138 of the Act.

Cause of Action as per Clause (c) of Section 138:

The cause of action begins after 15 days from the date the drawer of the cheque receives the notice. If the drawer fails to pay the amount demanded in the notice within this 15-day period, the cause of action arises.

A reading of clause (c) of Section 138 alongside clause (b) of Section 142 indicates that the cause of action for filing the complaint begins from the date of expiry of the 15-day period after the notice is received by the drawer. The proviso does not require the complainant's knowledge of the exact date on which the drawer received the notice.

In this case, the postal endorsement confirmed that the notice issued by the complainant was served on the accused on December 18, 2003. The accused had 15 days from this date to settle the amount, with this period ending on January 2, 2004. Accordingly, the complaint should have been filed within 30 days from that date, as per clause (b) of Section 142 of the NI Act. However, the complaint was filed on February 9, 2004, making it outside the permissible period. A review of the complaint showed no statement about when the statutory notice was served on the accused.

The notice dated December 10, 2003, was sent both by registered post and by certificate of posting, and it was deemed served on the accused on or before December 18, 2003. Therefore, the Magistrate was not justified in taking cognizance of the offence based on the complaint filed on February 9, 2004, which was beyond the time limit prescribed under clause (b) of Section 142 of the NI Act.

Cases Referenced:

1. Kamlesh Kumar v. State of Bihar, AIR 2014 SC 660
2. Sheikh Shabbir v. Shaikh Yusuf, 2012 Cri LJ 4743 (Bom)
3. Saketh India Ltd., 1999 Cri LJ 1822 (SC)
4. T.S. Muralidhar v. H. Narayana Singh, 2010 Cri LJ 3315 (Kar)

Written By: S Kundu & Associates
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