Cri.M.C. Nos.2794 of 2004,Cri.M.C. Nos.2796 of 2004,Cri.M.C. Nos. 3020 of 2004,Cri.M.C. Nos.3035 of 2004,Cri.M.C. Nos.3036 of 2004,Cri.M.C. Nos.3046 of 2004,Cri.M.C. Nos. 2753 of 2004

11th April, 2005

Petitioner Counsel: Mr. SANDEEP SETHI,Mr. ASHESH LAL , Mr. SANJEEV KUMAR
Respondent Counsel: Mr. G. P. THAREJA, Mr. J. K. SINGHAL , Mr. KAPIL SINGHAL

Cases Cited:
Poornasree Agencies Vs. Universal Enterprises, 1995(3) Cri 798 [Para PARA4]
K. R. Indira Vs. Dr. G. A. Adinarayana, 2003 ALL MR (Cri) 2706 (S.C.)=2003(3) JCC [NI] 213 : 2004(1) Dishonour of Cheque Reporter 145 [Para 5]

JUDGMENT

-These are seven petitions under Section 482 of the Code of Criminal Procedure (in short Cr.P.C.) filed by Shri. Srikant Somani & Others challenging the order of the Court of learned Metropolitan Magistrate dated 18.8.2003 whereby the petitioners being accused Nos.3 to 6 in different complaint cases under Section 138 of the Negotiable Instruments Act (hereinafter the 'Act')- were summoned. As per the complaints filed by respondent Sharad Gupta, 24 cheques were issued by the petitioners, some from the account of the petitioners Nos.1 to 3 and some from the account of the petitioners 1,3 & 4. All these cheques were dishonoured. A notice of demand as required by proviso (b) to Section 138 of the Act was issued on 5.5.2003. The petitioners are stated to be persons in charge of and responsible for the conduct of the business of the two companies, namely, M/s. Vimal Trading Co. & M/s. Krishna Trading Co. The notice, therefore, was issued to the two companies and to the petitioners at three addresses. The notice after mentioning why the cheques were issued and how they were dishonoured calls upon the petitioners to pay the sum of Rs.14,50,000/- being the total of 24 dishonoured cheques and threatened that unless the amount is paid within 15 days criminal proceedings under Section 138 of the Act read with Sections 120-B/420/34 IPC would be initiated. Several complaints were filed as one complaint could include only 3 cheques. The seven petitions under Section 482 Cr.P.C. relate to seven complaints, in all of which the impugned order dated 18.8.2003 was passed summoning the petitioners for offence under Section 138 of the Act. These seven complaints and the seven petitions under Section 482 Cr.P.C are as under:

Petition Nos.Corresponding complaint Nos.Cheques involvedCri.M.C. 2794/04 Cri. Complaint No.271/1 of 2003No. 279106 dated 6.3.2003No.299173 dated 5.3.2003No.302543 dt. 10.3.2003Cri. M.C.2796/04Cri. Complaint No.275/1 of 2003No.279108 dated 6.3.2003 No.299175 dated 5.3.2003 No.299176 dated 1.3.2003Cri.M.C. 3020/04Cri. Complaint No.274/1 of 2003No.279107 dated 6.3.2003No.302556 dated 6.3.2003 No.299174 dated 5.3.2003Cri. M. C. 3035/04Cri. Complaint No.267/1 of 2003No.279112 dated 6.3.2003No.299180 dated 6.3.2003 No.302557 dated 6.3.2003Cri.M.C. 3036/04Cri. Complaint No.276/1 of 2003 No.302558 dated 6-3-2003 No.302559 dated 6-3-2003 No.302560 dated 6.3.2003Cri. M.C. 3046/04Cri. Complaint No.272/l of 2003No.279110 dated 6.3.2003No.299172 dated 6.3.2003No.299178 dated 6.3.2003Cri. M.C. 2753/04Cri. Complaint No.277/1 of 2003No.279111 dated 6.3.2003No.299170 dated 6.3.2003.No.299171 dated 6.3.2003

2. In all the petitions, under Section 482 Cr.P.C. the grounds for challenge are common, namely, (1) cognizance of the offence was barred by limitation; (2) notice was bad as it was (a) not issued to individual petitioners, (b) not served on the individual petitioners, (c) not given exclusively for the three cheques involved in each complaint; (3) the cheques were issued under the signatures of only petitioner No.1 in his personal capacity and, therefore, cognizance could not have been taken against all; (4) the petitioners were not the partners of any firm; (5) the complainant does not mention which firm was liable for what amount.

3. Much stress has been laid on the point of limitation. The notice on 5-5-2003 was allegedly served at one of the addresses on 10.5.2003. The complaint is filed on 26.6.2003. If the notice is served on 10.5.2003, the drawer is entitled to make payment within 15 days, namely, upto 25.5.2003. The cause of action should, therefore, arise on 26.6.2003. Since the payment could be made till the last hour of 25.5.2003, the cause of action could arise only on 26.5.2003. If counted from 26.5.2003, the period of one month would expire on 25.6.2003. However, the normal rule of computing limitation is that the day on which the cause of action arises has to be excluded. Therefore, the computation of the period of one month has to start on 27.5.2003 and the month from 27.5.2003 ends on 26.6.2003. The complaint filed on 26.6.2003 is, therefore, within limitation.

4. In the complaint the complainant says that the period of 15 days would expire on 26.5.2003 because 25.5.2003 was a Sunday. This, however, is not correct because there is no bar in making payment on Sunday. Therefore, the 15 days period should be treated to have expired on 25.5.2003 and the cause of action should be treated to have arisen on 26.5.2003. According to the petitioners, the cause of action having arisen on 26.5.2003, the period of one month expired on 25.6.2003. Reliance is placed on the judgment of the High Court of Kerala in the case of Poornasree Agencies Vs. Universal Enterprises & Anr., 1995(3) Crimes 798. In this judgment, the High Court of Kerala held that when the cause of action for filing a complaint under Section 138 of the Act arose on 25.6.1993, the period of limitation expired on 24.7.1993 and, therefore, the complaint filed on 26.7.1993 (25.7.1993 was a holiday) was barred by time. This judgment is difficult to follow because it does not take note of the general principle that in computing the period of limitation that first day has to be excluded. It may be said that Section 12 of the Limitation Act will not apply because it applies to suit, appeal or application and not to a complaint under the Cr.P.C. However, the provisions of Sections 9 & 10 of the General Clauses Act cannot be overlooked. Section 9 of the General Clauses Act also gives recognition to the well established principle that ordinarily in computing time the rule observed is to exclude the first day and to include the last. Thus, if 26.5.2003 is excluded then the period of one month expires on 26.6.2003 and, therefore, the complaint filed on 26.6.2003 has to be held within time.

5. So far as the three points raised against the validity of the notice is concerned, they have to be considered to be rejected. The form in which the notice has to be issued is immaterial. No form is prescribed in the Act. It has been so held by the Supreme Court in the case of K. R. Indira Vs. Dr. G. A. Adinarayana, 2003(3) JCC [NI] 213 : 2004(1) Dishonour of Cheque Reporter 145 : [2003 ALL MR (Cri) 2706 (S.C.)]. Similarly, I do not see anything wrong in common notice being jointly addressed to all the persons responsible for the offence.

6. The other three points can be dealt with together. Admittedly, the cheques in question were all issued by petitioner No.1, Srikant Somani. Copies of cheques on record show that they were issued in his individual capacity and not as partner of any firm. It is significant to note that the accused Nos.1 & 2 firms in the complaint, namely, M/s. Vimal Trading Co. & M/s. Krishna Trading Co., have not been summoned by the Metropolitan Magistrate. The firms are, therefore, not the accused in this case. The petitioners, other than petitioner No.1, have been added as accused in the complaint on the plea that they were the persons responsible to the accused Nos.1 & 2 firms for the conduct of its day-to-day business. Since firms are not the accused any more the petitioners other than petitioner No.1 cannot be summoned to stand trial as persons responsible to the two firms for the conduct of its business.

7. The respondents say that the cheques were issued on behalf of the accused. This certainly has no relevance for an offence under Section 138 of the Negotiable Instruments Act. The offence is committed by the person who issues the cheques and not the person on whose behalf the cheque is issued unless, however, the person on whose behalf the cheque is issued is a company or a partnership firm. Even if it is presumed that the account from which the cheque was issued was held jointly by petitioner No.1 and any other petitioner, no petitioner other than petitioner No.1 can become liable for the offence. Section 138 makes it very clear that only the person who draws the cheque is liable for the offence. Vicarious liability is available only in respect of those offences committed by a company as provided in Section 141 of the Negotiable Instruments Act. The petitioners other than petitioner No.1 are neither the persons who drew the cheques nor the persons who can become liable by virtue of Section 141 of the Negotiable Instruments Act. Thus only the petitioner No.1 becomes liable for the offence and he alone can be summoned. The petitioners, other than petitioner No.1, could not have been summoned by the trial Court.

8. In view of the above, I hold that the petition has to be dismissed as against petitioner No.1 but has to be allowed vis-a-vis petitioner Nos.2,3 & 4. It is ordered accordingly. The order of summoning so far as it relates to petitioner Nos.2, 3 & 4 is set aside.

Order accordingly.