M/S. ECON ANTRI LTD. Vs M/S. ROM INDUSTRIES LTD.
Bench: P SATHASIVAM,RANJANA PRAKASH DESAI,RANJAN GOGOI
Case number: Crl.A. No.-001079-001079 / 2006
Diary number: 26005 / 2004
Advocates: VIKAS MEHTA Vs
KAMAKSHI S. MEHLWAL
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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.”
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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?”
1 (1999) 3 SCC 1
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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
2 (1999) 4 SCC 567
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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:
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“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
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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
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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
3 (1972) 1 SCC 639
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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
4 (2006) 9 SCC 340
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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
5 (2008)13 SCC 689
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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.
6 (2010) 12 SCC 210 7 (2000) 8 SCC 649
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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
others12]. 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
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
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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
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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
13 (2001) 7 SCC 740
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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.
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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
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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
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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
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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
14 (1904) 1 K.B, at p. 1, 5
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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 15 15 Ves. 248; 10 R. R. 68 16 14 M. & W. 574 17 [1963] 1 All E.R. 11
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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,
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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:
18 (1961) 2Q.B. 135 19 2nd ed., vol. 32 p. 142
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“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 20 (1892) 1 Q.B.161
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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 21 (1951) 2 KB 792
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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 22 (1895) 2 Q.B. 264
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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.
23 15 Ves. 248
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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
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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
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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
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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
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Page 30
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
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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
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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
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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
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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.”
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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
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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
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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
24 AIR 1967 Bombay 138 25 (2004) 7 SCC 33
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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.
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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
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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".
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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
26 3rd Edn., vol. 37 p. 95
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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, 27 (1793) 5 Term Rep 283
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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
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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
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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
45