H.G. MARADDI Vs. SHRI GOPALKRISHNA

JUDGEMENT

(1.) THOUGH these three petitions are in respect of three different cheques issued by the Petitioner as common question of law and interpretation arise for consideration, the same are taken up together for consideration and the present common order is passed.

(2.) IN these revision petitions the accused has challenged the order dated 19.5.1998 passed by the learned JMFC., Gadag, in C.C. No. 417 of 1998 ordering issue of process to the Petitioner for the offence under Section 138 of the Negotiable Instruments Act (Act for short).

(3.) SRI Chandrashekar S. Patil, learned Counsel for the Petitioner -accused in all the three cases vehemently contended that apart from the merits/demerits of the case there is patent lacuna in the sense non -compliance or violation of the limitation prescribed and as such the impugned orders of issue of process are liable to be quashed. The learned Counsel, for the Petitioner relying upon the wordings in Section 138(c) of the Act contended that the cause of action for the complainant under this provision arises only after the expiry of 15th day from the date of service of notice on the Petitioner -accused. Accordingly as the postal endorsement itself shows refusal intimation is received by the Respondent on 3.5.1998, as per the aims and objects of the provision the grace period of 15 days has to be given to the Petitioner -accused so as to make good the liability and only after the expiry of clear 15 days complaint could be lodged. Relying upon the pronouncements of the Apex Court in the case of Saketh India Limited Vs. India Securities Limited, ILR 1999 Kar 2291 he contended that if third May is excluded 15 clear days would be on 18th May, 1998 and the cause of action arises only thereafter. According to him the filing of the complaint on 18th day is premature one. The learned Counsel also relied upon the pronouncement of this Court in the case of Ashok Hegde Vs. Jathin V. Attawan, (1997) CriLJ 3691 , judgment of Bombay High Court in the case of Rakesh Nemkumar Porwal Vs. Narayan Dhondu Joglekar, (1994) 3 BomCR 355 and also Punjab and Haryana High Court in the case of Ashok Verma Vs. Ritesh Agro Private Limited and Anr, II (1994) CCR 1364. For the purpose of interpreting the meaning of the word 'within' he relied upon the decision of the Bombay High Court in the case of Smt. Manjuli v. Civil Judge 1970 Bom 1 to contend that when certain time is allowed for doing the act last day is also is included for performing the act. The learned Counsel contended that as per the decision of the Apex Court in the case of Saketh and the Bombay High Court Judgment in the case of Smt. Manjuli, the date of receipt of notice i.e., 3.5.1998 if excluded, the limitation of 15 days expires on 15th day i.e., on 18.5.1998 and as per the pronouncement of the Bombay High Court in the case of Smt. Manjuli's case even that date of 18th has to be excluded and as such according to the learned Counsel the cause of action starts from 19th onwards. If that is so, filing of the complaint on 18th May, 1998 according to him is premature one and the proceedings are liable to be quashed on this ground alone.