TMI Blog2013 (9) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... or event was prescribed by law or fixed as contract, and the question arises whether the computation was to be made inclusively or exclusively of the first-mentioned or of the lastmentioned day, regard must be had to the context and to the purposes for which the computation had to be made - Where there was room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be - Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended - As a general rule, however, the effect of defining a period in such a manner was to exclude the first day and to include the last day. Saketh India Ltd. & Ors. v. India Securities Ltd. [1999 (3) TMI 591 - SUPREME COURT] lays down the correct proposition of law - the purpose of calculating the period of one month, which was prescribed u/s 142(b) of the N.I. Act, the period had to be reckoned by excluding the date on which the cause of action arose - SIL Import USA does not lay down the correct law - Needless to say that any decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance is placed in Saketh. Section 138 of the N.I. Act reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid. either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) 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; (b) the payee or the holder in due course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of time, to use the word to . (2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. 5. In Saketh cheques dated 15/3/1995 and 16/3/1995 issued by the accused therein bounced when presented for encashment. Notices were served on the accused on 29/9/1995. As per proviso (c) to Section 138 of the NI Act, the accused were required to make the payment of the said amount within 15 days of the receipt of the notice i.e. on or before 14/10/1995. The accused failed to pay the amount. The cause of action, therefore, arose on 15/10/1995. According to the complainant for calculating one month s period contemplated under Section 142(b), the date 15/10/1995 has to be excluded. The complaint filed on 15/11/1995 was, therefore, within time. According to the accused, however, the date on which the cause of action arose i.e. 15/10/1995 has to be included in the period of limitation and thus the complaint was barred by time. The accused, therefore, filed petition under Section 482 of the Code of Criminal Procedure, 1973 ( the Code ) for quashing the process issued by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t day on which cause of action arises is to be excluded. In this connection counsel relied on State of Himachal Pradesh Anr. v. Himachal Techno Engineers Anr., (2010) 12 SCC 210 where it is held that Section 12 of the Limitation Act is applicable to the Arbitration and Conciliation Act, 1996 (for short, the Arbitration Act"), which is a statute providing for its own period of limitation. Counsel submitted that the N.I. Act is a special statute and it does not expressly bar the applicability of the Limitation Act. Counsel submitted that if this Court reaches a conclusion that the provisions of the Limitation Act are not applicable to the N.I. Act, it should hold that Section 9 of the General Clauses Act, 1897 covers this case. Counsel submitted in Tarun Prasad Chatterjee v. Dinanath Sharma (2000) 8 SCC 649 Section 12 of the Limitation Act is held to be in pari materia with Section 9 of the General Clauses Act. Counsel submitted that in the same judgment this Court has held that use of words from and within does not reflect any contrary intention and the first day on which the cause of action arises has to be excluded. Counsel submitted that in the circumstances this Court s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done. Section 12(1) of the Limitation Act cannot be resorted to so as to extend that period even by one day. If the starting point is excluded, that will render the word within of Section 142(b) of the N.I. Act otiose. Counsel submitted that the word within has been held by this Court to mean on or before . [Danial Latifi and Another v. U.O.I. (2001) 7 SCC 740] Therefore, the complaint under Section 142(b) should be filed on or before or within, 30 days of the date on which the cause of action under Section 138(c) arises. Counsel submitted that there is no justification to exclude the 16th day of the 15 day period under Section 138(c) or the first day of the 30 days period under Section 142(b) as has been wrongly decided in Saketh . This would amount to exclusion of the starting date of the period. Such exclusion has been held to be against the law in SIL Import USA. Counsel further submitted that the provisions of the Limitation Act are not applicable to the N.I. Act as held by this Court in Subodh S. Salaskar. Counsel pointed out that by Amending Act 55 of 2002, a proviso was added to Section 142(b) of the N.I. Act. It bestows discretion upon the court to accept a complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no dispute about the fact that notice sent by fax was received by the complainant on the same date i.e. 11/6/1996. This Court observed that as per clause (c) of Section 138, starting point of period for making payment is the date of receipt of the notice. Once it starts, the offence is completed on failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. Thus, it was held that since the fax was received on 11/6/1996, the period of 15 days for making payment expired on 26/6/1996. Since amount was not paid, offence was committed and, therefore, cause of action arose from 26/6/1996 and the period of limitation for filing complaint expired on 26/7/1996 i.e. the date on which period of one month expired as contemplated under Section 142(b). The complaint filed on 8/8/1996 was, therefore, beyond the period of limitation. The relevant observations of this Court could be quoted hereunder: 19. The High Court s view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases. The rule is now well established that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded. 11. The second case referred to is Cartwright v. MacCormack [1963] 1 All E.R. 11 . In that case, the plaintiffs met with an accident at 5.45 p.m. on 17/12/1959. He was run into by the defendant driving a motor car. He issued his writ in this action claiming damages for personal injuries. The defendant initiated third party proceedings against the respondent insurance company, alleging the company s liability to indemnify him under an instrument called a temporary cover note admittedly issued by the insurance company on 2/12/1959. The insurance company inter alia contended that the policy had expired before the accident happened. The insurance company succeeded on this point. On appeal the insurance company reiterated that the cover note issued by the insurance company contained the expression fifteen days from the date of commencement of policy . On the same note date and time were noted as 2/12/1959 and 11.45 a.m. It was argued that the fifteen days started at 11.45 a.m. on 2/12/1959 and expired at the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation. Reliance was also placed in this judgment on Radcliffe v. Bartholomew (1892) 1 Q.B.161 . In that case on June 30 an information was laid against the appellant therein in respect of an act of cruelty alleged to have been committed by him on May 30. An objection was taken on the ground that the complaint had not been made within one calendar month after the cause of the complaint had arisen. It was held that the day on which the alleged offence was committed was to be excluded from the computation of the calendar month within which the complaint was to be made; that the complaint was, therefore, made in time. 13. The fourth case referred to is Stewart v. Chapman (1951) 2 KB 792 . In that case, an information was preferred by a police constable that Mr. Chapman had on 11/1/1951 driven a motor car along a road without due care and attention contrary to Section 12 of the Road Traffic Act, 1930. At hearing, a preliminary objection was taken that the notice of intended prosecution had not been served on the defendant within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tcy. On appeal the same view was reiterated. Rigby L.J referred to Lester v. Garland 23 where Sir W. Grant expressed that if there were to be a general rule, it ought to be one of exclusion, as being more reasonable than one to the opposite effect. 15. We shall now turn to Haru Das Gupta, where this Court has followed the law laid down in the above judgments. In that case, the petitioner therein was arrested and detained on 5/2/1971 by order of District Magistrate passed on that day. The order of confirmation and continuation, which has to be passed within three months from the date of detention, was passed on 5/5/1971. The question for decision was as to when the period of three months can be said to have expired. It was contended by the petitioner that the period of three months expired on the midnight of 4/5/1971, and any confirmation and continuation of detention thereafter would not be valid. This Court referred to several English decisions on the point apart from the above decisions and rejected this submission holding that the day of commencement of detention namely 5/2/1971 has to be excluded. Relevant observations of this could read as under: These decisions show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to the N.I. Act. It is true that in Subodh S. Salaskar, this Court has held that the Limitation Act, 1963 is not applicable to the N.I. Act. However even if the Limitation Act, 1963 is held not applicable to the N.I. Act, the conclusion reached in Saketh could still be reached with the aid of Section 9 of the General Clauses Act, 1897. Section 9 of the General Clauses Act, 1897 states that in any Central Act or Regulation made after the commencement of the General Clauses Act, 1897, it shall be sufficient to use the word from for the purpose of excluding the first in a series of days or any other period of time and to use the word to for the purpose of including the last in a series of days or any other period of time. Sub- Section (2) of Section 9 of the General Clauses Act, 1897 states that this Section applies to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. This Section would, therefore, be applicable to the N.I. Act. 18. Counsel, however, submitted that using two different words from and of in Section 138 at different places clarifies the intention of the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 81 of the RP Act, 1951 which relates to presentation of petition reads thus: 81. Presentation of petitions. (1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation. In this sub-section, elector means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. * * * (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Before analyzing this provision, this Court made it clear that it was an accepted position that the Limitation Act had no application to the RP Act, 1951. This Court then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation. It was argued in that case that the language used in Section 81(1) that within forty-five days from, but not earlier than the date of election of the returned candidate expresses a different intention and Section 9 of the General Clauses Act has no application. While rejecting this submission, this Court observed that: We do not find any force in this contention. In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed from a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the General Clauses Act, 1897 require to exclude the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bombay High Court. It was pointed out that under Section 124 of the Customs Act, 1962, no order confiscating any goods or imposing any penalty on any person shall be made unless the owner of the goods or such person is given a notice in writing with the prior approval of the officer of customs not below the rank of an Assistant Commissioner of Police, informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Under Section 110(1) of the Customs Act, 1962 a proper officer, who has reason to believe that any goods are liable to confiscation may seize such goods. Under sub-Section(2) of Section 110 of the Customs Act, 1962, where any goods are seized under sub-Section (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Under proviso to Section 110, sub-section (2), however, the Collector could extend the period of six months on sufficient cause being shown. It was argued that the Customs Officers had seized the goods within the meaning of Section 110 of the Customs Act, 1962 on 4/9/1964. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "from". It was observed that "of", "from" and "'after" really meant the same thing and that no distinction could be suggested from the nature of the two provisions. In Stroud's Judicial Dictionary, Vol. 3, 1953 Edition in Note (5) under the word "of", it has been observed that "of" is sometimes the equivalent of "after" e.g., in the expression "within 21 days of the execution". The principle underlying section 9 of the General Clauses Act cannot therefore, be held to be inapplicable, merely because the word used in sub-section (2) of section 110 is "of" and not "from". Relevant extracts from Halsbury s laws of England 26 were quoted. They read as under: The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him. This general rule applies irrespective of whether the limitation of time is imposed by the act of a party or by statute; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the day on which the offence is committed or the cause of action arises is excluded in the computation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the General Clauses Act, 1897, day from which such period is to be reckoned is to be excluded for calculating limitation. It was pointed out by counsel for the respondents that Section 43 of the Arbitration Act makes the Limitation Act, 1963 applicable to the Arbitration Act whereas it is held to be not applicable to the N.I. Act and, therefore, this judgment would not be applicable to the present case. We have noted that in this case reliance is not merely placed on Section 12(1) of the Limitation Act. Reliance is also placed on Section 9 of the General Clauses Act. However, since, in the instant case we have reached a conclusion on the basis of Section 9 of the General Clauses Act, 1897 and on the basis of a long line of English decisions that where a particular time is given, from a certain date, within which an act is to be done, the day of the date is to be excluded, it is not necessary to discuss whether State of Himachal Pradesh is applicable to this case or not because Section 12(1) of the Limitation Act is relied upon therein. 25. Having considered the question of law involved in this case in proper perspective, in light of relevant judgments, we are of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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