published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40692
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1079 OF 2006
ECON ANTRI LTD. … APPELLANT
VS.
ROM INDUSTRIES LTD. & ANR. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. On 13/10/2006, while granting leave in Special Leave Petition
(Criminal) No.211 of 2005, this Court passed the following order:
“In our view, the judgment relied upon by the counsel for the
appellant in the case of Saketh India Ltd. & Ors. v. India
Securities Ltd. (1999) 3 SCC 1 requires reconsideration. Orders of
the Hon’ble the Chief Justice may be obtained for placing this matter
before a larger Bench.”
Pursuant to the above order, this appeal is placed before us.
2. Since the referral order states that the judgment of this Court in
Saketh India Ltd. & Ors. v. India Securities Ltd.[1] (“Saketh”) requires
reconsideration, we must first refer to the said judgment. In that case,
this Court identified the question of law involved in the appeal before it
as under:
“Whether the complaint filed under Section 138 of the NI Act is within or beyond time as it was contended that it was not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act?”
The same question was reframed in simpler language as under:
“Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?”
3. It is pointed out to us that there is a variance between the view
expressed by this Court on the above question in Saketh and in SIL Import,
USA v. Exim Aides Silk Exporters, Bangalore[2].
We will have to therefore
re-examine it for the purpose of answering the reference. The basic
provisions of law involved in this reference are proviso (c) to Section 138
and Section 142(b) of the Negotiable Instruments Act, 1881 (“the NI Act”).
4. Facts of Saketh need to be stated to understand how the above
question of law arose. But, before we turn to the facts, we must quote
Section 138 and Section 142 of the N.I. Act. We must also quote Section
12(1) and (2) of the Limitation Act, 1963 and Section 9 of the General
Clauses Act, 1897, on which 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 of the Cheque, as the case
may be, makes a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the cheque, within thirty
days of the receipt of information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the
said notice.”
Section 142 of the N.I. Act reads as under:
“142. Cognizance of offences:
Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974 ),-
(a) no court shall take cognizance of any offence punishable under
section 138 except upon a complaint, in writing, made by the payee or,
as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to section 138;
[Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court
that he had sufficient cause for not making a complaint within such
period.]
(c) no court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under section 138.”
Sections 12(1) and (2) of the Limitation Act, 1963 reads as under:
“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.
(2) In computing the period of limitation for an appeal or an
application for leave to appeal or for revision or for review of a
judgment, the day on which the judgment complained of was pronounced
and the time requisite for obtaining a copy of the decree, sentence or
order appealed from or sought to be revised or reviewed shall be
excluded.”
Section 9 of the General Clauses Act, 1897 reads as under:
“9. Commencement and termination of time.-
(1) In any [Central Act] or Regulation made after the commencement
of this 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”.
(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 learned Magistrate. That
petition was rejected by the High Court. Hence, the accused approached
this Court. This Court referred to its judgment in Haru Das Gupta v. State
of West Bengal.[3] wherein it was held that the rule is well established
that where a particular time is given from a certain date within which an
act is to be done, the day on that date is to be excluded; the effect of
defining the period from such a day until such a day within which an act is
to be done is to exclude the first day and to include the last day.
Referring to several English decisions on the point, this Court observed
that the 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. This Court observed that this principle is also incorporated in
Section 9 of the General Clauses Act, 1897. This Court further observed
that there is no reason for not adopting the rule enunciated in Haru Das
Gupta, which is consistently followed and which is adopted in the General
Clauses Act and the Limitation Act. This Court went on to observe that
ordinarily in computing the time, the rule observed is to exclude the first
day and to include the last. Following the said rule in the facts before
it, this Court excluded the date ‘15/10/1995’ on which the cause of action
had arisen for counting the period of one month. Saketh has been followed
by this Court in Jindal Steel and Power Ltd. & Anr. v. Ashoka Alloy Steel
Ltd. & Ors.[4] In Subodh S. Salaskar v. Jayprakash M. Shah & Anr.,[5]
there is a reference to Jindal Steel & Power Ltd.
6. We have heard learned counsel for the parties at some length. We have
also carefully perused their written submissions. Ms. Prerna Mehta, learned
counsel for the appellant submitted that Saketh lays down the correct law.
She submitted that as held by this Court in Saketh while computing the
period of one month as provided under Section 142(b) of the N.I. Act, the
first day on which the cause of action has arisen has to be excluded. The
same principle is applicable in computing the period of 15 days under
Section 138(c) of the N.I. Act. Counsel submitted that Saketh has been
followed by this Court in Jindal Steel and Power Ltd. and Subodh S.
Salaskar. Counsel also relied on Section 12(1) of the Limitation Act, 1961
which provides that the first 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.,[6] 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[7] 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 should hold that Saketh lays
down correct proposition of law.
7. Shri Sunil Gupta, learned senior counsel for the respondents, on the
other hand, submitted that the provisions of the N.I. Act provide for a
criminal offence and punishment and, therefore, must be strictly construed.
Counsel submitted that it is well settled that when two different words
are used in the same provision or statute, they convey different meaning.
[The Member, Board of Revenue v. Arthur Paul Benthall[8], The Labour
Commissioner, Madhya Pradesh v. Burhanpur Tapti Mills Ltd. and
others[9], B.R. Enterprises etc. V. State of U.P. & Ors. etc. [10], Kailash
Nath Agarwal and ors. v. Pradeshiya Industrial & Investment Corporation of
U.P. Ltd. and another[11], DLF Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana and others[12]]. Counsel pointed out that
Section 138(a) provides a period of 6 months from the date on which the
Cheque is drawn, as the period within which the Cheque is to be presented
to the bank. Section 138(b) provides that the payee must make a demand of
the amount due to him within 30 days of the receipt of information from the
bank. Section 138(c) uses the words ‘within 15 days of the receipt of
notice’. Using two different words ‘from’ and ‘of’ in the same Section at
different places clarifies the intention of the legislature to convey
different meanings by the said words. According to counsel, seen in this
light, the word ‘of’ occurring in Section 138(c) and Section 142(b) is to
be interpreted differently as against the word ‘from’ occurring in Section
138(a). The word ‘from’ may be taken as implying exclusion of the date in
question and may well be governed by the General Clauses Act, 1897.
However, the word ‘of’ is different and needs to be interpreted to include
the starting day of the commencement of the prescribed period. It is not
governed by Section 9 of the General Clauses Act, 1897. Thus, 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 date on which the cause of action arises should be included for
computing the period of 30 days. Counsel further submitted that Section
138(c) and Section 142(b) prescribe the period within which certain acts
are required to be 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.[13]] 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 after the period of 30 days
and to condone the delay. This amendment signifies that prior to this
amendment the courts had no discretion to condone the delay or exclude time
by resorting to Section 5 of the Limitation Act. The statement of objects
and reasons of the Amending Act 55 of 2002 confirms the legal position that
the N.I. Act being a special statute, the Limitation Act is not applicable
to it. Counsel submitted that the judgment of this Court on the
Arbitration Act is not applicable to this case because Section 43 of the
Arbitration Act specifically makes the Limitation Act applicable to
arbitrations. Counsel submitted that in view of the above, it is evident
that Saketh does not lay down the correct law. It is SIL Import USA
which correctly analyses the provisions of law and lays down the law.
Counsel urged that the reference be answered in light of his submissions.
8. It is necessary to first refer to SIL Import USA on which heavy
reliance is placed by the respondents as it takes a view contrary
to the view taken in Saketh. In SIL Import USA, the complainant-
Company’s case was that the accused owed a sum of US $ 72,075 (equivalent
to more than 26 lakhs of rupees) to it towards the sale consideration of
certain materials. The accused gave some post-dated Cheques in repayment
thereof. Two of the said Cheques when presented on 3/5/1996 for encashment
were dishonoured with the remark “no sufficient funds”. The complainant
sent a notice to the accused by fax on 11/6/1996. On the next day i.e.
12/6/1996 the complainant also sent the same notice by registered post
which was served on the accused on 25/6/1996. On 8/8/1996 the complainant
filed a complaint under Section 138 of the N.I. Act. Cognizance of the
offence was taken and process was issued. Process was quashed by the
Magistrate on the grounds urged by the accused. The complainant moved the
High Court. The High Court set aside the Magistrate’s order and restored
the complaint. That order was challenged in this Court. The only point
which was urged before this Court was that the Magistrate could not have
taken cognizance of the offence after the expiry of 30 days from the date
of cause of action. This contention was upheld by this Court. This Court
held that the notice envisaged in clause (b) of the proviso to Section 138
transmitted by fax would be in compliance with the legal requirement.
There 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 fallacy of the above
reasoning is that it erases the starting date of the period of 15 days
envisaged in clause (c). As per the said clause the starting date is
the date of “the receipt of the said notice”. Once it starts, the
offence is completed on the failure to pay the amount within 15 days
therefrom. Cause of action would arise if the offence is committed.
20. If a different interpretation is given the absolute interdict
incorporated in Section 142 of the Act that no court shall take
cognizance of any offence unless the complaint is made within one
month of the date on which the cause of action arises, would become
otiose.”
9. Undoubtedly, the view taken in SIL Import USA runs counter to the
view taken in Saketh. What persuaded this Court in Saketh to take the view
that in computing time, the rule is to exclude the first day and include
the last can be understood if we have a look at the English cases which
have been referred to in the passage quoted therein from Haru Das Gupta.
10. We must first refer to The Goldsmiths’ Company v. The West
Metropolitan Railway Company.[14] In that case, under a special Act, a
railway company was empowered to take lands compulsorily for the purpose of
its undertaking, and the powers of the company for this purpose were to
cease after the expiration of three years from the passing of the Act. The
Act received the Royal assent on 9/8/1899. On 9/8/1902 the railway company
gave notice to the plaintiffs to treat for the purchase of lands belonging
to them which were scheduled in the special Act. The question was whether
the notice was served on the plaintiffs within three years. It was held
that the notice was served within the prescribed time because the day of
the passing of the Act i.e. 9/8/1899 had to be excluded. The relevant
observations of the Court may be quoted as under:
“The true principle that governs this case is that indicated in
the report of Lester v. Garland[15], where Sir William Grant
broke away from the line of cases supporting the view that there
was a general rule that in cases where time is to run from the
doing of an act or the happening of an event the first day is
always to be included in the computation of the time. The view
expressed by Sir William Grant was repeated by Parke B. in
Russell v. Ledsam[16], and by other judges in subsequent
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[17].
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 same time on 17/12/1959. The accident
occurred at 5.45 p.m. on 17/12/1959 and, therefore, it was not covered by
the insurance policy. The Court of Appeal treated the expression ‘fifteen
days from the commencement of the policy’ as excluding the first date and
the cover note was held to commence at midnight of that date. It was
observed that the policy expired fifteen days from 2/12/1959 and these
words on the ordinary rules of construction exclude the first date and
begin at midnight on that day, therefore, the policy would cover the
accident which had occurred at 5.45 p.m. on 17/12/1959.
12. The third case referred to is Marren v. Dawson Bentley & Co.
Ltd.[18]. In that case on 8/11/1954 an accident occurred whereby the
plaintiff was injured in the course of his employment with the defendants.
On 8/11/1957, he issued a writ claiming damages for the injuries which he
alleged were caused by the defendants’ negligence. The defendants pleaded,
inter alia, that the plaintiff’s cause of action, if any, accrued on
8/11/1954 and the proceedings had not been commenced within the period of
three years thereof contrary to Section 2(1) of the Limitation Act, 1939.
It was held that the day of the accident was to be excluded from the
computation of the period within which the action should be brought and,
therefore, the defendants’ plea must fail. While coming to this conclusion
reliance was placed on passages from Halsbury’s laws of England[19]. It is
necessary to quote those passages:
“207. 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 rule is especially reasonable in the case in which
that person is not necessarily cognisant of the act or event; and
further in support of it there is the consideration that in case the
period allowed was one day only, the consequence of including that day
would be to reduce to a few hours or minutes the time within which the
person affected should take action.
208. In view of these considerations the general rule is that, as well
in cases where the limitation of time is imposed by the act of a party
as in those where it is imposed by statute, the day from which the
time begins to run is excluded; 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.”
Reliance was also placed in this judgment on Radcliffe v.
Bartholomew[20]. 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[21]. 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 fourteen days of commission of
offence in accordance with Section 21 of the Road Traffic Act, 1930,
inasmuch as although the alleged offence was committed at 7.15 a.m. on
11/1/1951, the prosecutor did not send the notice of intended prosecution
by registered post; until 1.00 p.m. on 11/1/1951 and it was not delivered
to the defendant until 25/1/1951 at about 8.00 a.m. This submission was
rejected observing that in calculating the period of fourteen days within
which the notice of an intended prosecution must be served under Section 21
of the Road Traffic Act, 1930, the date of commission of the offence is to
be excluded.
14. In re. North. Ex parte Hasluck[22], the execution creditor obtained
judgment on 19/5/1893. An order was made authorizing sale of the
bankrupt’s goods. The purchase money thereunder was paid to the sheriff on
July 18. The sheriff retained the money for fourteen days in compliance
with Section 11 of the Bankruptcy Act, 1890. In August, the solicitor of
the execution creditor paid over the said money to the execution creditor.
Application was filed by the trustee in bankruptcy for an order calling
upon the execution creditor and his solicitor to pay over to the trustee,
the proceeds of an execution against the bankruptcy goods on the ground
that at the time of the sale they had notice of prior act of bankruptcy on
the part of the bankrupt. Under Section 1 of the Bankruptcy Act, 1890, a
debtor commits an act of bankruptcy if execution against him has been
levied by seizure of his goods, and the goods have been held by the sheriff
for twenty one days. The time limit of twenty one days was an allowance of
time to the debtor within which to redeem if he can. It was under these
circumstances it became necessary to ascertain whether there was, in fact,
a holding by the sheriff for twenty one days prior to the sale. If there
was, then neither the execution creditor, nor his solicitor could be heard
to say that they had no notice of such possession and the act of bankruptcy
thereby constituted. Vaughan Williams, J. held that if the goods were
seized on June 27 and sold on July 18, if June 27 is excluded, there was no
holding by the sheriff for 21 days and consequently there was no act of
bankruptcy and therefore execution creditor is not bound to hand over the
money on the ground that he received it with notice of an act of
bankruptcy. 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 courts have drawn a distinction between a
term created within which an act may be done and a time limited for
the doing of an act. The rule is well-established that where a
particular time is given from a certain date within which an act is
to be done, the day on that date is to be excluded. (See Goldsmiths
Company v. the West Metropolitan Railway Company). This rule was
followed in Cartwright v. Maccormack where the expression “fifteen
days from the date of commencement of the policy” in a cover note
issued by an insurance company was construed as excluding the first
date and the cover note to commence at midnight of that day, and
also in Marren v. Damson Bentley & Co. Ltd. a case for compensation
for injuries received in the course of employment, where for
purposes of computing the period of limitation the date of the
accident, being the date of the cause of action, was excluded. (See
also Stewart v. Chadman and In re North, Ex parte Wasluck). Thus, as
a general rule the effect of defining a period from such a day until
such a day within which an act is to be done is to exclude the first
day and to include the last day. [See Halsbury’s Laws of England,
(3rd Edn.). Vol. 37, pp. 92 and 95.] There is no reason why the
aforesaid rule of construction followed consistently and for so long
should not also be applied here.”
16. We have extensively referred to Saketh. The reasoning of this Court
in Saketh based on the above English decisions and decision of this Court
in Haru Das Gupta which aptly lay down and explain the principle that
where a particular time is given from a certain date within which an act
has to be done, the day of the date is to be excluded, commends itself to
us as against the reasoning of this Court in SIL Import USA where there is
no reference to the said decisions.
17. It was submitted that in Saketh this Court has erroneously placed
reliance on Section 12(1) and (2) of the Limitation Act, 1963. Section 12
(1) states 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. In Section 12(2) the same principle is extended to computing
period of limitation for an application for leave to appeal or for revision
or for review of a judgment. Our attention was drawn to Subodh S. Salaskar
wherein this Court has held that the Limitation Act, 1963 is not 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 to convey different meanings by the said words. He submitted
that the word ‘of’ occurring in Sections 138(c) and 142(b) of the N.I. Act
is to be interpreted differently as against the word ‘from’ occurring in
Section 138(a) of the N.I. Act. The word ‘from’ may be taken as implying
exclusion of the date in question and that may well be governed by the
General Clauses Act, 1897. However, the word ‘of’ is different and needs
to be interpreted to include the starting day of the commencement of the
prescribed period. It is not governed by Section 9 of the General Clauses
Act 1897. Thus, according to learned counsel, 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 date on which
the cause of action arises should be included for computing the period of
30 days.
19. We are not impressed by his submission. In this connection, we may
refer to Tarun Prasad Chatterjee. Though, this case relates to the
provisions of the Representation of the People Act, 1951 (for short ‘the RP
Act, 1951’), the principle laid down therein would have a bearing on the
present case. What is important to bear in mind is that the Limitation
Act is not applicable to it. In that case the short question involved was
whether in computing the period of limitation as provided in Section 81(1)
of the RP Act, 1951, the date of election of the returned candidate should
be excluded or not. The appellant was declared elected on 28/11/1998. On
12/1/1999, the respondent filed an election petition under Section 81(1) of
the RP Act, 1951 challenging the election of the appellant. The appellant
filed an application under Order VII Rule 11 of the CPC read with Section
81 of the RP Act, 1951 praying that the election petition was liable to be
dismissed at the threshold as not maintainable as the same had not been
filed within 45 days from the date of election of the returned candidate.
While dealing with this issue, this Court referred to Section 67-A of the
RP Act, 1951 which states that for the purpose of the RP Act, 1951 the date
on which a candidate is declared by the returning officer under Section 53
or Section 66 to be elected shall be the date of election of the candidate.
As stated earlier, the appellant was declared elected as per this
provision by the returning officer on 28/11/1998. 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 referred to sub-clause (1) of Section 9 of the
General Clauses Act, 1897, which states that 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 words ‘from’ and for the purpose of including last in a
series of days or any other period of time to use the word ‘to’. This
Court observed that Section 9 gives statutory recognition to the well
established principle applicable to the construction of statute that
ordinarily in computing the period of time prescribed, the rule observed is
to exclude the first and include the last day. This Court quoted the
relevant provisions of Halsbury’s Laws of England, 37th Edn., Vol.3, p. 92.
We deem it appropriate to quote the same.
“Days included or excluded — When a period of time running from a
given day or even to another day or event is prescribed by law or
fixed as contract, and the question arises whether the computation is
to be made inclusively or exclusively of the first-mentioned or of the
last-mentioned day, regard must be had to the context and to the
purposes for which the computation has to be made. Where there is 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 is to exclude the first day and to include the last
day.”
The further observations made by this Court are pertinent and need to
be quoted:
“12. Section 9 says that in any Central Act or regulation made after
the commencement of the General Clauses Act, 1897, 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 period of
time, to use the word “to”. The principle is that when a period is
delimited by statute or rule, which has both a beginning and an end
and the word “from” is used indicating the beginning, the opening day
is to be excluded and if the last day is to be included the word “to”
is to be used. In order to exclude the first day of the period, the
crucial 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 first day. The words “from” and “within” used in Section
81(1) of the RP Act, 1951 do not express any contrary intention.”
This Court concluded that a conjoint reading of Section 81(1) of the
RP Act, 1951 and Section 9 of the General Clauses Act, 1897 leads to the
conclusion that the first day of the period of limitation is required to be
excluded for the convenience of the parties. This Court observed that if
the declaration of the result is done late in the night, the candidate or
elector would hardly get any time for presentation of election petition.
Law comes to the rescue of such parties to give full forty-five days period
for filing the election petition. In the facts before it since the date of
election of the returned candidate was 28/11/1998, the election petition
filed on 12/1/1999 on exclusion of the first day from computing the period
of limitation, was held to be in time.
20. As the Limitation Act is held to be not applicable to N.I. Act,
drawing parallel from Tarun Prasad Chatterjee where the Limitation Act was
held not applicable, we are of the opinion that with the aid of Section 9
of the General Clauses Act, 1897 it can be safely concluded in the present
case that while calculating the period of one month which is prescribed
under Section 142(b) of the N.I. Act, the period has to be reckoned by
excluding the date on which the cause of action arose. It is not possible
to agree with the counsel for the respondents that the use of the two
different words ‘from’ and ‘of’ in Section 138 at different places
indicates the intention of the legislature to convey different meanings by
the said words.
21. In this connection we may also usefully refer to the judgment of the
Division Bench of the Bombay High Court in Vasantlal Ranchhoddas Patel &
Ors. v. Union of India & Ors.[24] which is approved by this Court in
Gopaldas Udhavdas Ahuja and another v. Union of India and others[25],
though in different context. In that case the premises of the appellants
were searched by the officers of the Enforcement Directorate. Several
packets containing diamonds were seized. The appellants made an
application, for return of the diamonds, to the learned Magistrate, which
was rejected. Similar prayer made to the Single Judge of the Bombay High
Court was also rejected. An appeal was carried by the appellants to the
Division Bench of the 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.
The notice contemplated under Section 124(a) was given after 3/3/1965, that
is after the period of six months had expired. As per Section 110(2),
notice contemplated under Section 124(a) of the Customs Act, 1962 had to be
given within six months of the seizure of the goods, and, therefore, notice
issued after the expiry of six months was bad in law and, hence, the
Collector of Customs was not competent to extend the period of six months
under the proviso to sub-section (2) of Section 110 as he had done.
Therefore, no order confiscating the goods or imposing penalty could have
been made and the goods had to be returned to the appellants. It was
argued that Section 9 of the General Clauses Act, 1897 has no application
because the words ‘from’ and ‘to’ found in Section 9 of the General
Clauses Act, 1897 are not used in sub-Section 2 of Section 110 of the
Customs Act, 1962. This submission was rejected and Section 9 of the
General Clauses Act, 1897 was held applicable. Speaking for the Bench
Chainani, C.J. observed as under:
“… … …The principle underlying section 9 has been applied even in the
cases of judicial orders passed by Courts, even though in terms the
section is not applicable, See. Ramchandra Govind v. Laxman Savleram,
AIR 1938 Bom 447, Dharamraj v Addl. Deputy Commr., Akola, AIR 1957 Bom
154, Puranchand v. Mohd Din. AIR 1935 Lah 291, Marakanda Sahu v. Lal
Sadananda, AIR 1952 Orissa 279, and Liquidator Union Bank, Mal, v.
Padmanabha Menon, (1954) 2 Mad LJ 44.The material words in sub-s. (2)
of section 110 are "within six months of the seizure of the goods". In
such provisions the word "of" has been held to be equivalent to
"from": see Willims v. Burgess and Walcot, (1840) 12 Ad and El 635. In
that case section 1 of the relevant statute enacted that warrants of
attorney shall be filed "within twenty-one days after the execution.
Section 2 enacted that unless they were "filed as aforesaid within the
said space of twenty-one days from the execution, "they and the
judgment thereon shall be void subject to the conditions specified in
the section. The warrant of attorney was executed on 9th December,
1839 and it was filed, and judgment entered up on the 30th December.
It was held that in computing the period of 21 days the day of
execution must be excluded, Reliance was placed on Ex parte Fallon,
(1793) 5 Term Rep 283 in which the word used was "of" and not "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.”
In the circumstances, it was held 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
N.I. Act, the complaint has to be made within one month of the date of
which cause of action arose. The view taken in Vasantlal Ranchhoddas Patel
meets with our approval.
22. In view of the above, it is not possible to hold that the word ‘of’
occurring in Section 138(c) and 142(b) of the N.I. Act is to be interpreted
differently as against the word ‘from’ occurring in Section 138(a) of the
N.I. 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
Ex parte Fallon[27] 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 Edition, Note (5), the word ‘of’ is sometimes
equivalent of ‘after’.
23. Reliance placed on Danial Latifi is totally misplaced. In that case
the Court was concerned with Section 3(1)(a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Section 3(1)(a) provides that
a divorced woman shall be entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the Iddat period by her
former husband. This provision is entirely different from Section 142(b)
of the N.I. Act, which provides that the complaint is to be made ‘within
one month of the date on which the cause of action arises’. (emphasis
supplied).
24. We may, at this stage, note that learned counsel for the appellant
relied on State of Himachal Pradesh where, while considering the question
of computation of three months’ limitation period and further 30 days
within which the challenge to the award is to be filed, as provided in
Section 34(3) and proviso thereto of the Arbitration Act, this Court held
that having regard to Section 12(1) of the Limitation Act, 1963 and Section
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 that
Saketh lays down the correct proposition of law.
We hold that for the
purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose.
We hold that SIL Import USA does not lay down the correct law.
Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the
question involved in this reference.
The reference is answered accordingly.
…………………………………………..CJI
(P. SATHASIVAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
……………………………………………..J.
(RANJAN GOGOI)
NEW DELHI,
AUGUST 26, 2013
-----------------------
[1] (1999) 3 SCC 1
[2] (1999) 4 SCC 567
[3] (1972) 1 SCC 639
[4] (2006) 9 SCC 340
[5] (2008)13 SCC 689
[6] (2010) 12 SCC 210
[7] (2000) 8 SCC 649
[8] AIR 1956 SC 35
[9] AIR 1964 SC 1687
[10] (1999) 9 SCC 700
[11] (2003) 4 SCC 305
[12] (2003) 5 SCC 622
[13] (2001) 7 SCC 740
[14] (1904) 1 K.B, at p. 1, 5
[15] 15 Ves. 248; 10 R. R. 68
[16] 14 M. & W. 574
[17] [1963] 1 All E.R. 11
[18] (1961) 2Q.B. 135
[19] 2nd ed., vol. 32 p. 142
[20] (1892) 1 Q.B.161
[21] (1951) 2 KB 792
[22] (1895) 2 Q.B. 264
[23] 15 Ves. 248
[24] AIR 1967 Bombay 138
[25] (2004) 7 SCC 33
[26] 3rd Edn., vol. 37 p. 95
[27] (1793) 5 Term Rep 283
-----------------------
38
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1079 OF 2006
ECON ANTRI LTD. … APPELLANT
VS.
ROM INDUSTRIES LTD. & ANR. … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. On 13/10/2006, while granting leave in Special Leave Petition
(Criminal) No.211 of 2005, this Court passed the following order:
“In our view, the judgment relied upon by the counsel for the
appellant in the case of Saketh India Ltd. & Ors. v. India
Securities Ltd. (1999) 3 SCC 1 requires reconsideration. Orders of
the Hon’ble the Chief Justice may be obtained for placing this matter
before a larger Bench.”
Pursuant to the above order, this appeal is placed before us.
2. Since the referral order states that the judgment of this Court in
Saketh India Ltd. & Ors. v. India Securities Ltd.[1] (“Saketh”) requires
reconsideration, we must first refer to the said judgment. In that case,
this Court identified the question of law involved in the appeal before it
as under:
“Whether the complaint filed under Section 138 of the NI Act is within or beyond time as it was contended that it was not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the NI Act?”
The same question was reframed in simpler language as under:
“Whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?”
3. It is pointed out to us that there is a variance between the view
expressed by this Court on the above question in Saketh and in SIL Import,
USA v. Exim Aides Silk Exporters, Bangalore[2].
We will have to therefore
re-examine it for the purpose of answering the reference. The basic
provisions of law involved in this reference are proviso (c) to Section 138
and Section 142(b) of the Negotiable Instruments Act, 1881 (“the NI Act”).
4. Facts of Saketh need to be stated to understand how the above
question of law arose. But, before we turn to the facts, we must quote
Section 138 and Section 142 of the N.I. Act. We must also quote Section
12(1) and (2) of the Limitation Act, 1963 and Section 9 of the General
Clauses Act, 1897, on which 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 of the Cheque, as the case
may be, makes a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the cheque, within thirty
days of the receipt of information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said
amount of money to the payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of the receipt of the
said notice.”
Section 142 of the N.I. Act reads as under:
“142. Cognizance of offences:
Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of 1974 ),-
(a) no court shall take cognizance of any offence punishable under
section 138 except upon a complaint, in writing, made by the payee or,
as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to section 138;
[Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court
that he had sufficient cause for not making a complaint within such
period.]
(c) no court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under section 138.”
Sections 12(1) and (2) of the Limitation Act, 1963 reads as under:
“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.
(2) In computing the period of limitation for an appeal or an
application for leave to appeal or for revision or for review of a
judgment, the day on which the judgment complained of was pronounced
and the time requisite for obtaining a copy of the decree, sentence or
order appealed from or sought to be revised or reviewed shall be
excluded.”
Section 9 of the General Clauses Act, 1897 reads as under:
“9. Commencement and termination of time.-
(1) In any [Central Act] or Regulation made after the commencement
of this 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”.
(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 learned Magistrate. That
petition was rejected by the High Court. Hence, the accused approached
this Court. This Court referred to its judgment in Haru Das Gupta v. State
of West Bengal.[3] wherein it was held that the rule is well established
that where a particular time is given from a certain date within which an
act is to be done, the day on that date is to be excluded; the effect of
defining the period from such a day until such a day within which an act is
to be done is to exclude the first day and to include the last day.
Referring to several English decisions on the point, this Court observed
that the 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. This Court observed that this principle is also incorporated in
Section 9 of the General Clauses Act, 1897. This Court further observed
that there is no reason for not adopting the rule enunciated in Haru Das
Gupta, which is consistently followed and which is adopted in the General
Clauses Act and the Limitation Act. This Court went on to observe that
ordinarily in computing the time, the rule observed is to exclude the first
day and to include the last. Following the said rule in the facts before
it, this Court excluded the date ‘15/10/1995’ on which the cause of action
had arisen for counting the period of one month. Saketh has been followed
by this Court in Jindal Steel and Power Ltd. & Anr. v. Ashoka Alloy Steel
Ltd. & Ors.[4] In Subodh S. Salaskar v. Jayprakash M. Shah & Anr.,[5]
there is a reference to Jindal Steel & Power Ltd.
6. We have heard learned counsel for the parties at some length. We have
also carefully perused their written submissions. Ms. Prerna Mehta, learned
counsel for the appellant submitted that Saketh lays down the correct law.
She submitted that as held by this Court in Saketh while computing the
period of one month as provided under Section 142(b) of the N.I. Act, the
first day on which the cause of action has arisen has to be excluded. The
same principle is applicable in computing the period of 15 days under
Section 138(c) of the N.I. Act. Counsel submitted that Saketh has been
followed by this Court in Jindal Steel and Power Ltd. and Subodh S.
Salaskar. Counsel also relied on Section 12(1) of the Limitation Act, 1961
which provides that the first 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.,[6] 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[7] 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 should hold that Saketh lays
down correct proposition of law.
7. Shri Sunil Gupta, learned senior counsel for the respondents, on the
other hand, submitted that the provisions of the N.I. Act provide for a
criminal offence and punishment and, therefore, must be strictly construed.
Counsel submitted that it is well settled that when two different words
are used in the same provision or statute, they convey different meaning.
[The Member, Board of Revenue v. Arthur Paul Benthall[8], The Labour
Commissioner, Madhya Pradesh v. Burhanpur Tapti Mills Ltd. and
others[9], B.R. Enterprises etc. V. State of U.P. & Ors. etc. [10], Kailash
Nath Agarwal and ors. v. Pradeshiya Industrial & Investment Corporation of
U.P. Ltd. and another[11], DLF Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana and others[12]]. Counsel pointed out that
Section 138(a) provides a period of 6 months from the date on which the
Cheque is drawn, as the period within which the Cheque is to be presented
to the bank. Section 138(b) provides that the payee must make a demand of
the amount due to him within 30 days of the receipt of information from the
bank. Section 138(c) uses the words ‘within 15 days of the receipt of
notice’. Using two different words ‘from’ and ‘of’ in the same Section at
different places clarifies the intention of the legislature to convey
different meanings by the said words. According to counsel, seen in this
light, the word ‘of’ occurring in Section 138(c) and Section 142(b) is to
be interpreted differently as against the word ‘from’ occurring in Section
138(a). The word ‘from’ may be taken as implying exclusion of the date in
question and may well be governed by the General Clauses Act, 1897.
However, the word ‘of’ is different and needs to be interpreted to include
the starting day of the commencement of the prescribed period. It is not
governed by Section 9 of the General Clauses Act, 1897. Thus, 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 date on which the cause of action arises should be included for
computing the period of 30 days. Counsel further submitted that Section
138(c) and Section 142(b) prescribe the period within which certain acts
are required to be 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.[13]] 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 after the period of 30 days
and to condone the delay. This amendment signifies that prior to this
amendment the courts had no discretion to condone the delay or exclude time
by resorting to Section 5 of the Limitation Act. The statement of objects
and reasons of the Amending Act 55 of 2002 confirms the legal position that
the N.I. Act being a special statute, the Limitation Act is not applicable
to it. Counsel submitted that the judgment of this Court on the
Arbitration Act is not applicable to this case because Section 43 of the
Arbitration Act specifically makes the Limitation Act applicable to
arbitrations. Counsel submitted that in view of the above, it is evident
that Saketh does not lay down the correct law. It is SIL Import USA
which correctly analyses the provisions of law and lays down the law.
Counsel urged that the reference be answered in light of his submissions.
8. It is necessary to first refer to SIL Import USA on which heavy
reliance is placed by the respondents as it takes a view contrary
to the view taken in Saketh. In SIL Import USA, the complainant-
Company’s case was that the accused owed a sum of US $ 72,075 (equivalent
to more than 26 lakhs of rupees) to it towards the sale consideration of
certain materials. The accused gave some post-dated Cheques in repayment
thereof. Two of the said Cheques when presented on 3/5/1996 for encashment
were dishonoured with the remark “no sufficient funds”. The complainant
sent a notice to the accused by fax on 11/6/1996. On the next day i.e.
12/6/1996 the complainant also sent the same notice by registered post
which was served on the accused on 25/6/1996. On 8/8/1996 the complainant
filed a complaint under Section 138 of the N.I. Act. Cognizance of the
offence was taken and process was issued. Process was quashed by the
Magistrate on the grounds urged by the accused. The complainant moved the
High Court. The High Court set aside the Magistrate’s order and restored
the complaint. That order was challenged in this Court. The only point
which was urged before this Court was that the Magistrate could not have
taken cognizance of the offence after the expiry of 30 days from the date
of cause of action. This contention was upheld by this Court. This Court
held that the notice envisaged in clause (b) of the proviso to Section 138
transmitted by fax would be in compliance with the legal requirement.
There 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 fallacy of the above
reasoning is that it erases the starting date of the period of 15 days
envisaged in clause (c). As per the said clause the starting date is
the date of “the receipt of the said notice”. Once it starts, the
offence is completed on the failure to pay the amount within 15 days
therefrom. Cause of action would arise if the offence is committed.
20. If a different interpretation is given the absolute interdict
incorporated in Section 142 of the Act that no court shall take
cognizance of any offence unless the complaint is made within one
month of the date on which the cause of action arises, would become
otiose.”
9. Undoubtedly, the view taken in SIL Import USA runs counter to the
view taken in Saketh. What persuaded this Court in Saketh to take the view
that in computing time, the rule is to exclude the first day and include
the last can be understood if we have a look at the English cases which
have been referred to in the passage quoted therein from Haru Das Gupta.
10. We must first refer to The Goldsmiths’ Company v. The West
Metropolitan Railway Company.[14] In that case, under a special Act, a
railway company was empowered to take lands compulsorily for the purpose of
its undertaking, and the powers of the company for this purpose were to
cease after the expiration of three years from the passing of the Act. The
Act received the Royal assent on 9/8/1899. On 9/8/1902 the railway company
gave notice to the plaintiffs to treat for the purchase of lands belonging
to them which were scheduled in the special Act. The question was whether
the notice was served on the plaintiffs within three years. It was held
that the notice was served within the prescribed time because the day of
the passing of the Act i.e. 9/8/1899 had to be excluded. The relevant
observations of the Court may be quoted as under:
“The true principle that governs this case is that indicated in
the report of Lester v. Garland[15], where Sir William Grant
broke away from the line of cases supporting the view that there
was a general rule that in cases where time is to run from the
doing of an act or the happening of an event the first day is
always to be included in the computation of the time. The view
expressed by Sir William Grant was repeated by Parke B. in
Russell v. Ledsam[16], and by other judges in subsequent
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[17].
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 same time on 17/12/1959. The accident
occurred at 5.45 p.m. on 17/12/1959 and, therefore, it was not covered by
the insurance policy. The Court of Appeal treated the expression ‘fifteen
days from the commencement of the policy’ as excluding the first date and
the cover note was held to commence at midnight of that date. It was
observed that the policy expired fifteen days from 2/12/1959 and these
words on the ordinary rules of construction exclude the first date and
begin at midnight on that day, therefore, the policy would cover the
accident which had occurred at 5.45 p.m. on 17/12/1959.
12. The third case referred to is Marren v. Dawson Bentley & Co.
Ltd.[18]. In that case on 8/11/1954 an accident occurred whereby the
plaintiff was injured in the course of his employment with the defendants.
On 8/11/1957, he issued a writ claiming damages for the injuries which he
alleged were caused by the defendants’ negligence. The defendants pleaded,
inter alia, that the plaintiff’s cause of action, if any, accrued on
8/11/1954 and the proceedings had not been commenced within the period of
three years thereof contrary to Section 2(1) of the Limitation Act, 1939.
It was held that the day of the accident was to be excluded from the
computation of the period within which the action should be brought and,
therefore, the defendants’ plea must fail. While coming to this conclusion
reliance was placed on passages from Halsbury’s laws of England[19]. It is
necessary to quote those passages:
“207. 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 rule is especially reasonable in the case in which
that person is not necessarily cognisant of the act or event; and
further in support of it there is the consideration that in case the
period allowed was one day only, the consequence of including that day
would be to reduce to a few hours or minutes the time within which the
person affected should take action.
208. In view of these considerations the general rule is that, as well
in cases where the limitation of time is imposed by the act of a party
as in those where it is imposed by statute, the day from which the
time begins to run is excluded; 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.”
Reliance was also placed in this judgment on Radcliffe v.
Bartholomew[20]. 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[21]. 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 fourteen days of commission of
offence in accordance with Section 21 of the Road Traffic Act, 1930,
inasmuch as although the alleged offence was committed at 7.15 a.m. on
11/1/1951, the prosecutor did not send the notice of intended prosecution
by registered post; until 1.00 p.m. on 11/1/1951 and it was not delivered
to the defendant until 25/1/1951 at about 8.00 a.m. This submission was
rejected observing that in calculating the period of fourteen days within
which the notice of an intended prosecution must be served under Section 21
of the Road Traffic Act, 1930, the date of commission of the offence is to
be excluded.
14. In re. North. Ex parte Hasluck[22], the execution creditor obtained
judgment on 19/5/1893. An order was made authorizing sale of the
bankrupt’s goods. The purchase money thereunder was paid to the sheriff on
July 18. The sheriff retained the money for fourteen days in compliance
with Section 11 of the Bankruptcy Act, 1890. In August, the solicitor of
the execution creditor paid over the said money to the execution creditor.
Application was filed by the trustee in bankruptcy for an order calling
upon the execution creditor and his solicitor to pay over to the trustee,
the proceeds of an execution against the bankruptcy goods on the ground
that at the time of the sale they had notice of prior act of bankruptcy on
the part of the bankrupt. Under Section 1 of the Bankruptcy Act, 1890, a
debtor commits an act of bankruptcy if execution against him has been
levied by seizure of his goods, and the goods have been held by the sheriff
for twenty one days. The time limit of twenty one days was an allowance of
time to the debtor within which to redeem if he can. It was under these
circumstances it became necessary to ascertain whether there was, in fact,
a holding by the sheriff for twenty one days prior to the sale. If there
was, then neither the execution creditor, nor his solicitor could be heard
to say that they had no notice of such possession and the act of bankruptcy
thereby constituted. Vaughan Williams, J. held that if the goods were
seized on June 27 and sold on July 18, if June 27 is excluded, there was no
holding by the sheriff for 21 days and consequently there was no act of
bankruptcy and therefore execution creditor is not bound to hand over the
money on the ground that he received it with notice of an act of
bankruptcy. 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 courts have drawn a distinction between a
term created within which an act may be done and a time limited for
the doing of an act. The rule is well-established that where a
particular time is given from a certain date within which an act is
to be done, the day on that date is to be excluded. (See Goldsmiths
Company v. the West Metropolitan Railway Company). This rule was
followed in Cartwright v. Maccormack where the expression “fifteen
days from the date of commencement of the policy” in a cover note
issued by an insurance company was construed as excluding the first
date and the cover note to commence at midnight of that day, and
also in Marren v. Damson Bentley & Co. Ltd. a case for compensation
for injuries received in the course of employment, where for
purposes of computing the period of limitation the date of the
accident, being the date of the cause of action, was excluded. (See
also Stewart v. Chadman and In re North, Ex parte Wasluck). Thus, as
a general rule the effect of defining a period from such a day until
such a day within which an act is to be done is to exclude the first
day and to include the last day. [See Halsbury’s Laws of England,
(3rd Edn.). Vol. 37, pp. 92 and 95.] There is no reason why the
aforesaid rule of construction followed consistently and for so long
should not also be applied here.”
16. We have extensively referred to Saketh. The reasoning of this Court
in Saketh based on the above English decisions and decision of this Court
in Haru Das Gupta which aptly lay down and explain the principle that
where a particular time is given from a certain date within which an act
has to be done, the day of the date is to be excluded, commends itself to
us as against the reasoning of this Court in SIL Import USA where there is
no reference to the said decisions.
17. It was submitted that in Saketh this Court has erroneously placed
reliance on Section 12(1) and (2) of the Limitation Act, 1963. Section 12
(1) states 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. In Section 12(2) the same principle is extended to computing
period of limitation for an application for leave to appeal or for revision
or for review of a judgment. Our attention was drawn to Subodh S. Salaskar
wherein this Court has held that the Limitation Act, 1963 is not 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 to convey different meanings by the said words. He submitted
that the word ‘of’ occurring in Sections 138(c) and 142(b) of the N.I. Act
is to be interpreted differently as against the word ‘from’ occurring in
Section 138(a) of the N.I. Act. The word ‘from’ may be taken as implying
exclusion of the date in question and that may well be governed by the
General Clauses Act, 1897. However, the word ‘of’ is different and needs
to be interpreted to include the starting day of the commencement of the
prescribed period. It is not governed by Section 9 of the General Clauses
Act 1897. Thus, according to learned counsel, 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 date on which
the cause of action arises should be included for computing the period of
30 days.
19. We are not impressed by his submission. In this connection, we may
refer to Tarun Prasad Chatterjee. Though, this case relates to the
provisions of the Representation of the People Act, 1951 (for short ‘the RP
Act, 1951’), the principle laid down therein would have a bearing on the
present case. What is important to bear in mind is that the Limitation
Act is not applicable to it. In that case the short question involved was
whether in computing the period of limitation as provided in Section 81(1)
of the RP Act, 1951, the date of election of the returned candidate should
be excluded or not. The appellant was declared elected on 28/11/1998. On
12/1/1999, the respondent filed an election petition under Section 81(1) of
the RP Act, 1951 challenging the election of the appellant. The appellant
filed an application under Order VII Rule 11 of the CPC read with Section
81 of the RP Act, 1951 praying that the election petition was liable to be
dismissed at the threshold as not maintainable as the same had not been
filed within 45 days from the date of election of the returned candidate.
While dealing with this issue, this Court referred to Section 67-A of the
RP Act, 1951 which states that for the purpose of the RP Act, 1951 the date
on which a candidate is declared by the returning officer under Section 53
or Section 66 to be elected shall be the date of election of the candidate.
As stated earlier, the appellant was declared elected as per this
provision by the returning officer on 28/11/1998. 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 referred to sub-clause (1) of Section 9 of the
General Clauses Act, 1897, which states that 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 words ‘from’ and for the purpose of including last in a
series of days or any other period of time to use the word ‘to’. This
Court observed that Section 9 gives statutory recognition to the well
established principle applicable to the construction of statute that
ordinarily in computing the period of time prescribed, the rule observed is
to exclude the first and include the last day. This Court quoted the
relevant provisions of Halsbury’s Laws of England, 37th Edn., Vol.3, p. 92.
We deem it appropriate to quote the same.
“Days included or excluded — When a period of time running from a
given day or even to another day or event is prescribed by law or
fixed as contract, and the question arises whether the computation is
to be made inclusively or exclusively of the first-mentioned or of the
last-mentioned day, regard must be had to the context and to the
purposes for which the computation has to be made. Where there is 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 is to exclude the first day and to include the last
day.”
The further observations made by this Court are pertinent and need to
be quoted:
“12. Section 9 says that in any Central Act or regulation made after
the commencement of the General Clauses Act, 1897, 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 period of
time, to use the word “to”. The principle is that when a period is
delimited by statute or rule, which has both a beginning and an end
and the word “from” is used indicating the beginning, the opening day
is to be excluded and if the last day is to be included the word “to”
is to be used. In order to exclude the first day of the period, the
crucial 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 first day. The words “from” and “within” used in Section
81(1) of the RP Act, 1951 do not express any contrary intention.”
This Court concluded that a conjoint reading of Section 81(1) of the
RP Act, 1951 and Section 9 of the General Clauses Act, 1897 leads to the
conclusion that the first day of the period of limitation is required to be
excluded for the convenience of the parties. This Court observed that if
the declaration of the result is done late in the night, the candidate or
elector would hardly get any time for presentation of election petition.
Law comes to the rescue of such parties to give full forty-five days period
for filing the election petition. In the facts before it since the date of
election of the returned candidate was 28/11/1998, the election petition
filed on 12/1/1999 on exclusion of the first day from computing the period
of limitation, was held to be in time.
20. As the Limitation Act is held to be not applicable to N.I. Act,
drawing parallel from Tarun Prasad Chatterjee where the Limitation Act was
held not applicable, we are of the opinion that with the aid of Section 9
of the General Clauses Act, 1897 it can be safely concluded in the present
case that while calculating the period of one month which is prescribed
under Section 142(b) of the N.I. Act, the period has to be reckoned by
excluding the date on which the cause of action arose. It is not possible
to agree with the counsel for the respondents that the use of the two
different words ‘from’ and ‘of’ in Section 138 at different places
indicates the intention of the legislature to convey different meanings by
the said words.
21. In this connection we may also usefully refer to the judgment of the
Division Bench of the Bombay High Court in Vasantlal Ranchhoddas Patel &
Ors. v. Union of India & Ors.[24] which is approved by this Court in
Gopaldas Udhavdas Ahuja and another v. Union of India and others[25],
though in different context. In that case the premises of the appellants
were searched by the officers of the Enforcement Directorate. Several
packets containing diamonds were seized. The appellants made an
application, for return of the diamonds, to the learned Magistrate, which
was rejected. Similar prayer made to the Single Judge of the Bombay High
Court was also rejected. An appeal was carried by the appellants to the
Division Bench of the 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.
The notice contemplated under Section 124(a) was given after 3/3/1965, that
is after the period of six months had expired. As per Section 110(2),
notice contemplated under Section 124(a) of the Customs Act, 1962 had to be
given within six months of the seizure of the goods, and, therefore, notice
issued after the expiry of six months was bad in law and, hence, the
Collector of Customs was not competent to extend the period of six months
under the proviso to sub-section (2) of Section 110 as he had done.
Therefore, no order confiscating the goods or imposing penalty could have
been made and the goods had to be returned to the appellants. It was
argued that Section 9 of the General Clauses Act, 1897 has no application
because the words ‘from’ and ‘to’ found in Section 9 of the General
Clauses Act, 1897 are not used in sub-Section 2 of Section 110 of the
Customs Act, 1962. This submission was rejected and Section 9 of the
General Clauses Act, 1897 was held applicable. Speaking for the Bench
Chainani, C.J. observed as under:
“… … …The principle underlying section 9 has been applied even in the
cases of judicial orders passed by Courts, even though in terms the
section is not applicable, See. Ramchandra Govind v. Laxman Savleram,
AIR 1938 Bom 447, Dharamraj v Addl. Deputy Commr., Akola, AIR 1957 Bom
154, Puranchand v. Mohd Din. AIR 1935 Lah 291, Marakanda Sahu v. Lal
Sadananda, AIR 1952 Orissa 279, and Liquidator Union Bank, Mal, v.
Padmanabha Menon, (1954) 2 Mad LJ 44.The material words in sub-s. (2)
of section 110 are "within six months of the seizure of the goods". In
such provisions the word "of" has been held to be equivalent to
"from": see Willims v. Burgess and Walcot, (1840) 12 Ad and El 635. In
that case section 1 of the relevant statute enacted that warrants of
attorney shall be filed "within twenty-one days after the execution.
Section 2 enacted that unless they were "filed as aforesaid within the
said space of twenty-one days from the execution, "they and the
judgment thereon shall be void subject to the conditions specified in
the section. The warrant of attorney was executed on 9th December,
1839 and it was filed, and judgment entered up on the 30th December.
It was held that in computing the period of 21 days the day of
execution must be excluded, Reliance was placed on Ex parte Fallon,
(1793) 5 Term Rep 283 in which the word used was "of" and not "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.”
In the circumstances, it was held 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
N.I. Act, the complaint has to be made within one month of the date of
which cause of action arose. The view taken in Vasantlal Ranchhoddas Patel
meets with our approval.
22. In view of the above, it is not possible to hold that the word ‘of’
occurring in Section 138(c) and 142(b) of the N.I. Act is to be interpreted
differently as against the word ‘from’ occurring in Section 138(a) of the
N.I. 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
Ex parte Fallon[27] 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 Edition, Note (5), the word ‘of’ is sometimes
equivalent of ‘after’.
23. Reliance placed on Danial Latifi is totally misplaced. In that case
the Court was concerned with Section 3(1)(a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Section 3(1)(a) provides that
a divorced woman shall be entitled to a reasonable and fair provision and
maintenance to be made and paid to her within the Iddat period by her
former husband. This provision is entirely different from Section 142(b)
of the N.I. Act, which provides that the complaint is to be made ‘within
one month of the date on which the cause of action arises’. (emphasis
supplied).
24. We may, at this stage, note that learned counsel for the appellant
relied on State of Himachal Pradesh where, while considering the question
of computation of three months’ limitation period and further 30 days
within which the challenge to the award is to be filed, as provided in
Section 34(3) and proviso thereto of the Arbitration Act, this Court held
that having regard to Section 12(1) of the Limitation Act, 1963 and Section
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 that
Saketh lays down the correct proposition of law.
We hold that for the
purpose of calculating the period of one month, which is prescribed under Section 142(b) of the N.I. Act, the period has to be reckoned by excluding the date on which the cause of action arose.
We hold that SIL Import USA does not lay down the correct law.
Needless to say that any decision of this Court which takes a view contrary to the view taken in Saketh by this Court, which is confirmed by us, do not lay down the correct law on the
question involved in this reference.
The reference is answered accordingly.
…………………………………………..CJI
(P. SATHASIVAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
……………………………………………..J.
(RANJAN GOGOI)
NEW DELHI,
AUGUST 26, 2013
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[1] (1999) 3 SCC 1
[2] (1999) 4 SCC 567
[3] (1972) 1 SCC 639
[4] (2006) 9 SCC 340
[5] (2008)13 SCC 689
[6] (2010) 12 SCC 210
[7] (2000) 8 SCC 649
[8] AIR 1956 SC 35
[9] AIR 1964 SC 1687
[10] (1999) 9 SCC 700
[11] (2003) 4 SCC 305
[12] (2003) 5 SCC 622
[13] (2001) 7 SCC 740
[14] (1904) 1 K.B, at p. 1, 5
[15] 15 Ves. 248; 10 R. R. 68
[16] 14 M. & W. 574
[17] [1963] 1 All E.R. 11
[18] (1961) 2Q.B. 135
[19] 2nd ed., vol. 32 p. 142
[20] (1892) 1 Q.B.161
[21] (1951) 2 KB 792
[22] (1895) 2 Q.B. 264
[23] 15 Ves. 248
[24] AIR 1967 Bombay 138
[25] (2004) 7 SCC 33
[26] 3rd Edn., vol. 37 p. 95
[27] (1793) 5 Term Rep 283
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38
