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  REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 434  OF 2014

(@ SPECIAL LEAVE PETITION(CRL.)No. 7595 of 2011) RAMESHCHANDRA AMBALAL JOSHI ….APPELLANT

VERSUS

THE STATE OF GUJARAT AND ANR.    ….RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

According  to  the  complainant-respondent  

No. 2, the accused-petitioner, Rameshchandra  

Ambalal Joshi was his friend, who had taken a  

loan of Rs.1,00,000/- (Rupees one lac only)  

from the complainant.  The petitioner issued a  

cheque  dated  31st of  December,  2005  towards  

repayment of the loan.  The cheque presented  

for payment by the complainant on 30th of June,  

2006  was  dishonoured  on  the  ground  of

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insufficiency of funds on the same day.  A  

registered notice dated 25th of July, 2006 was  

then  sent  by  the  complainant  to  which  the  

petitioner  replied.   The  complainant  then  

filed Criminal Case No. 2146 of 2006 on 5th of  

September, 2006 alleging commission of offence  

under  Section  138  of  the  Negotiable  

Instruments Act, 1881 (hereinafter referred to  

as  ‘the  Act’)  in  the  Court  of  Judicial  

Magistrate,  First  Class,  Borsad,  who  took  

cognizance of the offence and issued summons  

to the petitioner.

An application for discharge was filed by  

the  petitioner before  the trial  court inter  

alia contending that as a period of six months  

had lapsed between the date of drawl of the  

cheque  on  31st of  December,  2005  and  its  

presentation  by  the  complainant  on  30th of  

June, 2006 for payment, the petitioner cannot  

be prosecuted.  The prayer of the petitioner  

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was rejected by the trial court on its finding  

that  the  provisions  of  discharge  were  not  

applicable  to  the  present  proceeding,  they  

being in the nature of summons trial.

A  criminal  revision  application  against  

the aforesaid order, filed by the petitioner  

before  the  Court  of  Sessions,  Anand  was  

rejected by an order dated 5th of May, 2009,  

which the petitioner assailed in a petition  

filed  under  Section  482  of  the  Code  of  

Criminal Procedure before the High Court.  The  

High Court by its order dated 20th of August,  

2010  rejected  the  application  of  the  

petitioner, observing as under:

“7. Though the submission has been  made  by  the  learned  counsel,  Mr.  Hakim  raising  the  contention  with  regard  to  the  limitation,  bare  perusal of the provisions of Section  138  of  the  Negotiable  Instrument  Act, would make it clear that what  law provides is presentation within  a  period  of  six  months,  meaning  thereby,  the  Legislature  has  provided the period of six months by  

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way of limitation.  It is also clear  that each month may not have same  number  of  days  and,  therefore,  wisely  what  has  been  provided  in  terms of months and not exact date  or days, meaning thereby, 180 days.  Therefore, cheque drawn on the last  date  of  month  of  December  would  remain  valid  for  a  period  of  six  months and the period of six months  would expire after the last date of  June  i.e.  30th June,  2006.  Therefore,  in  the  facts  and  circumstances  of  the  case,  as  the  cheque has already been presented on  30th June, 2006, it cannot be said  that  it  is  barred  by  limitation.  Therefore,  the  submission  made  by  the learned counsel, Hakim cannot be  readily accepted.”

It  is  against  this  order  that  the  

petitioner  has  preferred  this  special  leave  

petition.

Leave granted.

Mr. Huzefa Ahmadi, learned senior counsel  

draws our attention to proviso (a) of Section  

138  of  the  Negotiable  Instruments  Act  and  

contends  that  to  attract  its  mischief  the  

cheque is required to be presented in the Bank  

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within six months from the date of its drawl.  

Otherwise, Section 138 of the Act would not  

apply.   Section  138  of  the  Act,  which  is  

relevant for our purpose reads as follows:

“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  provisions  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  

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it  is  drawn  or  within  the  period  of  its  validity,  whichever is earlier;

xxx xxx xxx”  

We are in agreement with Mr. Ahmadi and,  

in fact, it is apparent from a plain reading  

of proviso (a) aforesaid that Section 138 of  

the Act would apply only when the cheque is  

presented to the Bank within a period of six  

months from the date on which it is drawn or  

within  period  of  its  validity,  whichever  

is earlier.

Mr. Ahmadi then points out that the cheque  

is valid from the date it is drawn and hence  

period of six months has to be calculated from  

the said date.  On facts, he points out that  

the cheque was drawn on 31st of December, 2005  

and presented on 30th of June, 2006, which is  

beyond the period of six months.  He submits  

that cheque is valid from the date shown in it  

and therefore for calculation of six months,  

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the date on which the cheque is drawn has to  

be included.  He has suggested the following  

two modes of calculation:

“  CALCULATION  OF  THE  PERIOD  OF  6  MONTHS  AS    PRESCRIBED UNDER SECTION 138 OF THE NEGOTIABLE  INSTRUMENTS ACT, 1881.

 DATE OF DRAWL OF CHEQUE – 31.12.2005 DATE OF PRESENTATION OF CHEQUE– 30.06.2006

No.  of  days  in  the  relevant months

Month-wise  calculation

January – 31 days 1st Month 31st December  to  30th  January

February – 28 days 2nd Month 30th January  to  27th  February

March – 31 days 3rd Month 27th February  to  30th  March

April – 30 days 4th Month 30th March  to  29th  April

May – 31 days 5th Month 29th April to 30th May

June – 30 days 6th Month 30th May to 29th June

OR No.  of  days  in  the  relevant months

Month-wise calculation

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January – 31 days 1st Month 31st December  to  30th  January

February – 28 days 2nd Month 31ST January  to  27th  February

March – 31 days 3rd Month 28th February  to  27th  March

April – 30 days 4th Month 28th March  to  27th  April

May – 31 days 5th Month 28th April to 27th May

June – 30 days 6th Month 28th May to 27th June

To  put  the  record  straight,  the  modes  

suggested,  in  fact,  do  not  reflect  his  

submission.   He,  however,  submits  that  

whichever mode is adopted, the cheque was not  

presented within the period of six months.  In  

support  of  the  submission,  he  has  placed  

reliance  on  a  decision  of  the  Kerala  High  

Court in the case of  K.V. Muhammed Kunhi vs.  P.  Janardhanan [1998  CRL.L.J. 4330] and our  attention  has  been  drawn  to  the  following  

passage from the said judgment:

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“3. ………..A comparative study of both  the  Sections  in  the  Act  and  the  General  Clauses  Act  significantly  indicate  that  the  period  of  limitation has to be reckoned from  the  date  on  which  the  cheque  or  instrument  was  drawn.   The  words  ‘from’ and ‘to’ employed in Section  9  of  the  General  Clauses  Act  are  evidently clear that in cases where  there is an ambiguity or suspicion  with  reference  to  the  date  of  commencement of period of limitation  in any Act or special enactment, the  words  ‘from’  and  ‘to’  employed  in  Section 9 of the General Clauses Act  can be pressed into service.  But in  the instant case before me, Section  138 proviso (a) is involved which is  so clear (as extracted above) that  the date of limitation will commence  only  from  the  date  found  in  the  cheque or the instrument.”

Mr. Ahmadi submits that the aforesaid view  

has been approved by this Court in the case of  

Sivakumar vs. Natarajan (2009) 13 SCC 623  in  the following words:

“14.  ………..A  comparative  study  of  both the Sections in the Act and the  General  Clauses  Act  significantly  indicate  that  the  period  of  limitation has to be reckoned from  the  date  on  which  the  cheque  or  instrument  was  drawn.   The  words  ‘from’ and ‘to’ employed in Section  9  of  the  General  Clauses  Act  are  

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evidently clear that in cases where  there is an ambiguity or suspicion  with  reference  to  the  date  of  commencement of period of limitation  in any Act or special enactment, the  words  ‘from  and  ‘to’  employed  in  Section 9 of the General Clauses Act  can be pressed into service.

We  are  in  agreement  with  the  aforementioned view.”    

It  may  look  like  a  repetition  of  the  

judgment but its relevance would be apparent  

from what we have observed in the subsequent  

paragraphs of this judgement.

Given  the  general  importance  of  the  

question  involved,  we  had  requested  Mr.  

V.Giri, learned Senior Counsel, to assist us  

as amicus curiae and he very generously agreed  

to do so.  We have also heard Ms. Hemantika  

Wahi, learned counsel appearing on behalf of  

the respondents.

They contend that the period of six months  

had expired on 30th of June, 2006 i.e. the date  

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on which the cheque was presented, which is  

within six months from the date it was drawn.  

They submit that as a general rule, in case of  

any  ambiguity,  Section  9  of  the  General  

Clauses Act, 1897 provides for exclusion of  

the first day and inclusion of the last day  

for the purpose of calculating commencement or  

termination of time. They submit that the date  

of issue of cheque, i.e. 31st of December,2005  

is to be excluded and the last day, i.e. 30th  

of  June,  2006  is  to  be  included  for  the  

purpose  of  calculating  the  period  of  six  

months under proviso (a) of Section 138 of the  

Act. According to the learned counsel, since  

the last day of the six months’ period was 30th  

of June, 2006 and the cheque was presented on  

that  very  same  day,  the  complaint  under  

Section 138 of the Act is not time barred.

We  have  given  our  most  anxious  

consideration to the submissions advanced and  

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we do not find any substance in the submission  

of  Mr.  Ahmadi  that  the  cheque  was  not  

presented to the Bank within a period of six  

months from the date on which it was drawn and  

the judgments relied on go against him instead  

of supporting his contention.

The  first  question  which  calls  for  our  

answer  is  the  meaning  of  the  expression  

“month”: whether it would mean only a period  

of  30  days  and,  consequently,  whether  six  

months would mean a period of 180 days. The  

word “month” has been defined under Section  

3(35) of the General Clauses Act to mean a  

month  reckoned  according  to  the  British  

calendar. Therefore we cannot ignore or eschew  

the word ‘British calendar’ while construing  

“month” under the Act. Accordingly, we are of  

the  opinion  that  the  period  of  six  months  

cannot be calculated on 30 days in a month  

basis.  Therefore,  both  the  modes  of  

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calculation  suggested  by  Mr.Ahmadi  do  not  

deserve  acceptance  and  are  rejected  

accordingly.

The  next  question  which  calls  for  our  

answer  is  the  date  from  which  six  months’  

period would commence. In case of ambiguity  

with reference to the date of commencement,  

Section 9 of the General Clauses Act can be  

pressed  into  service  and  the  same  reads  

as follows:

“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”.

From  the  judgment  of  this  Court  in  the  

case of Sivakaumar(supra) and as quoted in the  preceding paragraph of this judgment, it is  

evident that this Court recorded its agreement  

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to a limited extent that “in cases where there  

is an ambiguity or suspicion with reference to  

the  date  of  commencement  of  period  of  

limitation” “Section 9 of the General Clauses  

Act can be pressed into service.”  We would  

hasten  to  add  that  this  Court  in  Sivakumar  (supra) did  not  give  nod  to  the  following  proposition  enunciated  by  the  Kerala  High  

Court in K.V.Muhammed Kunhi (supra). “3………….But  in  the  instant  case  before me, Section 138 proviso (a)  is involved which is so clear (as  extracted  above)  that  the  date  of  limitation will commence only from  the date found in the cheque or the  instrument.”

In the case of K.V.Muhammed Kunhi (supra)  the cheque was dated 17.11.1994 and that was  

presented on 17.5.1995, and in this background  

the Court observed as follows:

“5. …. When on the footing of the  days covered by the British calendar  month  the  period  of  limitation  in  the case on hand is calculated, the  cheque ought to have been presented  in  the  Bank  for  collection  on  or  

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before 16-5-1995. But in this case,  as pointed out above the cheque had  been presented for collection only  on  17-5-1995,  which  is  clearly  barred by limitation.”

In this case, six months’ period expired a  

day prior to the corresponding month. In the  

case  in  hand,  no  such  day  falls  in  the  

corresponding month and therefore the last day  

would  be  last  date  of  the  immediate  

previous month.

Mr. Ahmadi appeals to us that if we take  

the view that the cheque was presented to the  

Bank before the expiry of six months, it would  

be in the teeth of the judgment of this Court  

in the case of Sivakumar (supra) and therefore  the matter shall be required to be referred to  

a larger Bench.  From what we have observed  

above, we have not taken a view different than  

what has been held in  Sivakumar (supra) and  therefore  we  do  not  find  any  necessity  to  

refer the case to a larger Bench.

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Proviso (a) to Section 138 of the Act uses  

the expression “six months from the date on  

which it is drawn”. Once the word ‘from’ is  

used for the purpose of commencement of time,  

in view of Section 9 of the General Clauses  

Act, the day on which the cheque is drawn has  

to be excluded.

This  Court,  relying  on  several  English  

decisions, dealt with the issue of computation  

of  time  for  the  purpose  of  limitation  

extensively in Haru Das Gupta v. State of West  Bengal,  (1972) 1 SCC 639 wherein Paragraph 5  states as follows:

“5. 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  Co.  (1904  KB  1  at  5).  This  rule  was  

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followed   in  Cartwright  v.  Maccormack  (1963)  1  All  E.R.  11,  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.  Dawson Bentley and Co. Ltd., (1961)  2 QB 135, 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 [1951] 2 KB 792 and In re  North, Ex parte Wasluck [1895] 2 QB  264.)  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 ed.) 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.”     

  (underlining ours)

This decision was quoted with approval in  

Saketh India Ltd. v.  India Securities Ltd.,  (1999) 3 SCC 1 in the following words:

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“7.  The  aforesaid  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.  Section 12(1) specifically provides  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. Similar provision is made  in  sub-section  (2)  for  appeal,  revision  or  review.  The  same  principle  is  also  incorporated  in  Section  9  of  the  General  Clauses  Act,  1897  which,  inter  alia,  provides  that  in  any  Central  Act  made after the commencement of the  General  Clauses  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”.

8. Hence, there is no reason for not  adopting the rule enunciated in the  aforesaid case which is consistently  followed and which is adopted in the  General  Clauses  Act  and  the  Limitation Act……………”

The correctness of this judgment came up  

for consideration before a three-Judge Bench  

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of  this  Court  in  Econ  Antri  Ltd.  vs.  Rom  Industries Ltd. & Anr., AIR 2013 SC 3283 which  approved the reasoning of this Court given in  

Saketh (supra) and Haru Das Gupta (supra) and  held as under:

“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.

xxx  xxx xxx

22. In view of the above, it is not  possible to hold that the word ‘of’  occurring  in  Section  138(a)  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  

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included for computing the period of  30 days. As held in Ex parte Fallon  (1793) 5 Term  Rep 283 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’.”

At this stage, we would also like to refer  

to  Halsbury’s  Law  of  England,  Vol.  37,  3rd  

Edn.,  Paragraph  143  at  Pages  83-84 which  provides for calculation of a calendar month:

“143.  Calendar  month  running  from  arbitrary  date. When  the  period  prescribed  is  a  calendar  month  running from any arbitrary date the  period expires with the day in the  succeeding  month  immediately  preceding the day corresponding to  the  date  upon  which  the  period  starts;  save  that,  if  the  period  starts  at  the  end  of  a  calendar  month which contains more days than  the  next  succeeding  month,  the  period  expires  at  the  end  of  the  latter month.”

Drawing  a  conclusion  from  the  above  

mentioned authorities, we are of the opinion  

that the use of word “from” in Section 138(a)  

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requires exclusion of the first day on which  

the cheque was drawn and inclusion of the last  

day within which such act needs to be done. In  

other words, six months would expire one day  

prior to the date in the corresponding month  

and in case no such day falls, the last day of  

the immediate previous month. Hence, for all  

purposes,  the  date  on  which  the  cheque  was  

drawn, i.e., 31.12.2005 will be excluded and  

the period of six months will be reckoned from  

the  next  day  i.e.  from  1.1.2006;  meaning  

thereby  that  according  to  the  British  

calendar, the period of six months will expire  

at the end of the 30th day of June, 2006. Since  

the cheque was presented on 30.6.2006, we are  

of the view that it was presented within the  

period prescribed.

 Viewed from any angle, the prosecution is  

not  time  barred  and  therefore,  cannot  be  

scuttled at this stage on this ground.  As the  

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matter  is  pending  since  long,  the  learned  

Magistrate in seisin of the trial shall make  

endeavour  to  conclude  it  within  six  months  

from the date the appellant next appears in  

the case. We direct the appellant to appear  

before the trial Judge on 3rd of March, 2014  

and no notice is to be issued to him for his  

appearance.

In the result, we do not find any merit in  

the appeal and it is dismissed accordingly.

………..………..……………………………….J.     (CHANDRAMAULI KR. PRASAD)

………………….………………………………….J.   (JAGDISH SINGH KHEHAR)

NEW DELHI. FEBRUARY 18, 2014.

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