2000 ALL MR (Cri) JOURNAL 89
KERALA HIGH COURT

K.A. MOHAMED SHAFI, J.

Jossy Kondody Vs. Chacko Thomas

Crl. R. P. No. 688 of 1994

7th September, 1999

Petitioner Counsel: Mr. K. M. JOSEPH
Respondent Counsel: Mr. MATHEW JOHN

(A) Negotiable Instruments Act (1881) Ss.138, 142 - Dishonour of cheque - Limitation of one month for filing complaint - Computation of - Cause of action arising on 28-1-91 - Complaint filed on 28-2-91 would be well within period of limitation.

1999 ALL MR (Cri) 521 (S.C.) Foll. (Para 15)

(B) Constitution of India, Art.141 - Conflict in two Supreme Court decisions of equal Benches - Courts should follow the judgment which appear to them to state the law accurately and elaborately.

AIR 1991 All 114 (FB) Rel. on. (Para 12)

Cases Cited:
Saketh India Ltd. Vs. India Securities Ltd., 1999 ALL MR (Cri) 521 (S.C.)=1999 (1) K.L.J. 820 (SC) [Para 4]
SIL Import, U.S.A. Vs. Exim Aides Silk Exporters, 1999 ALL MR (Cri) 826 (S.C.)=1999 (2) K.L.T. 275 (SC) [Para 5,7]
SIL Import, U.S.A. Vs. Exim Aides Silk Exporters, 1999(2) ALL MR 558 (S.C.)=1999 (2) K.L.T. 275 (SC) [Para 5,7]
Poornasree Agencies Vs. Universal Enterprises, 1995 (1) KLT 370 [Para 9]
Chandran Vs. Excise Inspector, 1989 (2) K.L.T. 845 [Para 11]
Ganga Saran Vs. Civil Judge, Hapur, AIR 1991 All. 114 (FB) [Para 12]


JUDGMENT

JUDGMENT :- This revision is preferred by the complainant in S.T. 254/91 on the file of the Chief Judicial Magistrate's Court, Kottayam challenging the order dated 12-4-1994 - dismissing the complaint filed by him as barred by limitation.

2. The revision petitioner filed the complaint against the respondent alleging offence punishable under Section 138 of the Negotiable Instruments Act. The respondent after entering appearance before the lower Court contended that the complaint filed by the revision petitioner is barred by time. The lower Court considered that contention as a preliminary point and after finding that the complaint filed by the revision petitioner was barred by limitation, dropped the case from the file as per the impugned order.

3. After the cheque issued by the respondent was bounced, the revision petitioner sent a registered notice intimating about the dishonour of the cheque and calling upon him to pay the amount due under the cheque and it was served upon the respondent on 12-1-1991. The lower court found that the limitation starts from 13-1-1991 and ends on 27-1-1991, from that date the revision petitioner has got one month's time to file the complaint. Therefore, starting from 28-1-1991 one month ends on 27-2-1991. The complaint was filed on 28-2-1991, a day after the period of one month and therefore, the complaint is barred by limitation.

4. There is no dispute with regard to the date of service of the notice sent by the revision petitioner to the respondent, under the 2nd proviso to Section 138 of the N.I. Act. The revision petitioner has contended that it is settled law that the first day of the period of one month viz. 28-1-1991 has to be excluded in computing the period of limitation of one month and therefore, the complaint filed by the revision petitioner on 28-2-1991 is perfectly within time. In support of this contention, the counsel for the revision petitioner relies upon the decision of the Supreme Court in Saketh India. Ltd v. India Securities Ltd. reported in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) In that case the question that came up before the Apex Court was whether the complaint filed by the respondent therein under Section 138 of the Negotiable Instruments Act was within or beyond time, as it was contended that it was 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 Negotiable Instruments Act. In that case notices intimating about the dishonour of the cheque were served upon the accused on 29-9-1995. The complaints were filed on 15-11-1995. Therefore, it was contended that the complaints were filed beyond time. The Apex Court after elaborate consideration of Sections 138 and 142 of the Negotiable Instruments Act and also the question whether for calculating the period of one month which is prescribed under Section 142(b) of the Negotiable Instruments Act the period has to be reckoned by excluding the date on which the cause of action arose, held that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of receipt of the notice by the drawer expired. Accordingly in that case the Apex Court found that the period of 15 days expired on 14-10-1995, the cause of action for filing the complaint arose from 15-10-1995 and that day 15th October is to be excluded for counting the period of one month. Therefore, the complaint filed on 15-11-1995 is within time.

5. The counsel for the respondent submitted that in view of the subsequent decision of the Supreme Court in SIL Import, U.S.A. v. Exim Aides Silk Exporters reported in 1999 (2) K.L.T. 275 (SC) : 1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.) the above decision relied upon by the counsel for the revision petitioner cannot be followed. According to him the subsequent ruling of the Supreme Court is in direct conflict with the decision of the Supreme Court reported in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.).

6. The decision in SIL Import, U.S.A. v. Exim Aides Silk Exporters (supra) is also a decision rendered by the very same two Judges of the Apex Court who rendered the judgment reported in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) relied upon by the counsel for the revision petitioner in this case. The counsel for the revision petitioner submitted that in that decision the main question considered by the Apex Court was whether a Fax message sent by the drawee of the cheque to the drawer intimating about the dishonour of the cheque is valid notice under the second proviso to Section 138 of the N.I Act and the question of period of limitation was not very material in that case since the complaint was filed long after the period of limitation prescribed under Section 142(b) of the N.I. Act. Therefore, according to him, the decision reported, in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) relied upon by him being directly on the point has to be accepted by this Court.

7. A careful reading of the judgment passed by the Supreme Court reported in 1999 (2) KLT 275 : 1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.) go to show that the Apex Court considered the validity of the notice sent by fax message as well as the period of limitation for filing the complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act. In that case the Supreme Court has held that the fax message was received by the drawer of the cheque on 11-6-1996. Therefore, the cause of action arose on the expiry of 15 days therefrom viz., 26-6-1996 and the period of limitation for filing the complaint expired on 26-7-1996. Therefore, the complaint filed on 8-8-1996 long after the expiry of the period of limitation on 26-7-1996 is barred by time. Therefore, it is clear that the Supreme Court has considered the period of limitation to be construed under the provisions of Sections 138 and 142 of the Negotiable Instruments Act in that case and entered the finding that the complaint should be filed within one month from the expiry of 15 days after the receipt of the notice without excluding any day.

8. Though the counsel for the revision petitioner submitted that it is highly improbable to believe that the same Bench consisted of the same Judges of the Apex Court which laid down the law regarding limitation under Sections 138 and 142 of the Negotiable Instruments Act after elaborate consideration of the entire aspects, entered an entirely different and diametrically opposite finding regarding the very same question of law within a few days of the pronouncement of the earlier judgment. That contention is not acceptable in view of the fact that it is clear from the judgments referred to above that the same Bench consisted of the very same Judges have laid down the law conflicting with each other in these Judgments.

9. It is contended by the counsel for the respondent that this Court has expressed its view with regard to limitation for filing complaint under Sections 138(b) and 142(b) of the N.I. Act in Poornasree Agencies v. Universal Enterprises reported in 1995 (1) KLT 370 and held that by receipt of the notice on 9-6-1993 the payment has to be made within 15 days from 10-6-1993 which would expire on 24-6-1993 and the complaint under Section 138 of the Negotiable Instruments Act should be filed from 25-6-1993 and before 24-7-1993 to be within time and therefore, the complaint filed subsequent to that date is barred by limitation. But in view of the two conflicting decisions of the Apex Court noted above, the above judgment of this Court by a Single Judge is not of much significance.

10. The further question to be considered is, when there is conflict between two decisions of the Apex Court of co-equal Benches, which of those decisions should be followed by this Court.

11. In the decision in Chandran v. Excise Inspector reported in 1989 (2) K.L.T. 845 this Court has held that "when judgments of superior courts are of co-equal Benches, and therefore, a matching authority, then their weight inevitably must be considered by the rational and logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered."

12. A Full Bench of the Allahabad High Court in the decision in Ganga Saran v. Civil Judge, Hapur after elaborate consideration of this aspect and the two lines of decisions viz., when there is a conflict in two Supreme Court decisions of equal Benches the decision which is later in point of time will be binding on the High Courts, and when there is conflict between judgments of the Supreme Court consisting of equal Judges, incidence of time is not a relevant factor and the High Court must follow the judgment which appears to it to lay down law elaborately and accurately, held that "if there is a conflict between the two decisions of equal Benches which cannot possibly reconcile, the Courts must follow the judgment which appear to them to state the law accurately and elaborately."

13. Therefore, it is clear that in between the two conflicting judgments rendered by the very same two Judge Benches of the Supreme Court, this Court has to consider which judgment laid down the law correctly and elaborately. From the observations made in the judgment in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) by the Supreme Court, it is clear that the Apex Court has considered various decisions of the English Courts with regard to exclusion of the date for reckoning the period of limitation and the provisions of Section 12 (1) and (2) of the Limitation Act, 1963 incorporated the exclusion of the date from which the period is to be reckoned for the purpose of limitation, and held that the period of one month for filing the complaint has to be reckoned from the date immediately following the date on which the period of 15 days from the date of the receipt of the notice by the drawer expires. Accordingly it was held that since the notice was received by the drawer on 29-9-1995, the period of 15 days expired on 14-10-1995 and so cause of action for filing the complaint arose from 15-10-1995 and by excluding that day, 15th October for reckoning the period of one month, the complaint filed on 15-11-1995 is within the period of limitation.

14. But in the decision reported in 1999 (2) KLT 275 : 1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.) the Supreme Court has not noticed the previous judgment reported in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) or the judgments referred to by the Apex Court in that judgment. But the Apex Court merely stated on a consideration of Section 142 of the N.I. Act that the drawer received the notice by fax message on 11-6-1996 and therefore, the last date on which the complaint should have been filed was on 26-7-1996 and therefore the complaint filed on 8-8-1996 is beyond the period of limitation provided under Section 142(b) of the N.I. Act. That finding is arrived at on the basis that on receipt of the notice by the drawer of the cheque on 11-6-1996, cause of action will arise on the expiry of 15 days therefrom viz. 26-6-1996 and the period for filing the complaint expired on 26-7-1996. But the exclusion of one day when the cause of action arose for counting the period of limitation of one month is not considered at all by the Supreme Court in the subsequent judgment reported in 1999 (2) KLT 275 : 1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.). Therefore, the earlier judgment reported in 1999 (1) KLJ 820 : 1999 ALL MR (Cri) 521 (S.C.) being the judgment which considered the law on the point elaborately and stated the law more accurately than the subsequent judgment reported in 1999 (2) KLT 275 : 1999 ALL MR (Cri) 826 (S.C.) : 1999(2) ALL MR 558 (S.C.)has to be followed.

15. In that view of the matter, if 28-1-1991, the day on which cause of action arose in this case, is excluded, the complaint filed by the revision petitioner on 28-2-1991 will be well within the period of limitation. Therefore, the lower court has committed manifest error in finding that the complaint filed in this case is barred by limitation and dropping the case from the file.

Hence this Cri. R.P. is allowed. The impugned order is set aside. The lower court is directed to restore the case on file and to dispose of the same in accordance with law, after giving opportunity to the parties to adduce evidence. Parties are directed to appear before the lower court on 11-10-1999.

Revision allowed.