SRIKANT SOMANI Vs. SHARAD GUPTA

JUDGEMENT

(1.) 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, 1881 (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 incharge 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 involved Crl.M.C.2794/04 Crl. Complaint No. 271/1 of 2003 No.279106 dated 6.3.2003 No.299173 dated 5.3.2003 No.302543 dt. 10.3.2003 Crl.M.C.2796/04 Crl. Complaint No.275/1 of 2003 No.279108 dated 6.3.2003 No.299175 dated 5.3.2003 No.299176 dated 1.3.2003 Crl.M.C.3020/04 Crl. Complaint No.274/1 of 2003 No.279107 dated 6.3.2003 No.302556 dated 6.3.2003 No.299174 dated 5.3.2003 Crl.M.C.3035/04 Crl. Complaint No.267/1 of 2003 No.279112 dated 6.3.2003 No.299180 dated 6.3.2003 No.302557 dated 6.3.2003 Crl.M.C.3036/04 Crl. Complaint No.276/1 of 2003 No.302558 dated 6.3.2003 No.302559 dated 6.3.2003 No.302560 dated 6.3.2003 Crl.M.C.3046/04 Crl. Complaint No.272/1 of 2003 No.279110 dated 6.3.2003 No.299172 dated 6.3.2003 No.299178 dated 6.3.2003 Crl.M.C.2753/04 Crl. Complaint No.277/1 of 2003 No.279111 dated 6.3.2003 No.299170 dated 6.3.2003 No.299171 dated 6.3.2003

(2.) In all the petition 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.