G. Yethirajulu, J.@mdashThis Criminal Appeal is preferred by the complainant against the judgment of the II Metropolitan Magistrate, Hyderabad dated 17-9-2002 in C.C. No. 313/1999. The appellant filed a private complaint u/s 200, Cr. P.C. for the offence punishable u/s 138 of the Negotiable Instruments Act (for short the "Act") against respondents 1 and 2. The learned Magistrate after recording the evidence and after hearing both parties held that the complaint is barred by limitation and hence the accused are acquitted for the offence u/s 138 of the Act. Being aggrieved by the judgment of the lower Court the appellant preferred the present appeal challenging its validity and legality.
2. The learned Counsel for the complainant submitted that the cause of action to file the complaint arose on 12-11-1999, limitation for filing complaint starts on 13-11-1999 and the limitation to file the complaint is on 12-12-1999. Since 12-12-1999 happens to be a Sunday, a public holiday. the complaint was filed on 13-12-1999, which is within the period of limitation. Therefore the lower Court is erred in holding that the complaint is barred by limitation. The learned Counsel for the respondents submitted that the complaint ought to have been filed on 12-12-1999 itself or on the prior working day. As the complainant is not deligent in watching the period of limitation, the lower Court was right in holding that the complaint is barred by limitation. The learned Counsel in support of the said contention relied upon Section 142 of the Act, which reads as follows:
142. Cognizance of offences :-- Notwithstanding anything contained in the Code of Criminal Procedure, 1973--
a) no court shall take cognizance of any offence punishable u/s 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque:
b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138:
Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.
c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable u/s 138.
3. It clearly indicates that the period of limitation is separately prescribed under this Act for filing a complaint u/s 138 of the Act irrespective of the limitation prescribed under the Limitation Act or any other law for preferring a complaint. He also relied on a judgment of Kerala High Court in
The period of limitation as defined under (j) of Section 2 of the Limitation Act "means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act. "But then in view of the special provisions in the Negotiable Instruments Act the period prescribed there alone can be taken into account for the purpose of limitation and that is, that a com-plaint has to be filed within one month of the date when the cause of action had accrued. As stated already, petitioner had received the notice on 9-6-1993. That date has to be excluded and payment has to be made within 15 days from 10-6-1993 and that would expire on 24-6-1993. A complaint for an offence u/s 138 of the Negotiable Instruments Act can be made within one month of the date on which the cause of action had arisen. Obviously it had started from 26-6-1993 and therefore the complaint ought to have been filed before 24-7-1993, which alone would have been within the time. The contention that applying the correspondent "date rule" complaint need have been filed only on 25-7-1993, which was however a holiday, and it having been filed on 26-7-1993 was in time, is unacceptable.
4. While relying upon the above decision, the learned Counsel for the respondents submitted that the period of one month, according to the decision of the Kerala High Court, has to be computed strictly irrespective of the fact whether the last day of limitation is a public holiday or not. I respectfully disagree with the judgment of the Kerala High Court and the submission made by the learned Counsel for the respondents for the following reasons:
5. Section 4 of the Limitation Act reads as follows:
4. Expiry of the prescribed period when Court is closed :-- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
6. In computing one month period of limitation a practical approach has to be made whether it is practicable to file the complaint on a public holiday and whether it is possible for a party before expiry of one month period to watch every day as to whether the last day of limitation is a public holiday and whether he has to file the complaint in advance before the expiry of period of limitation. It is an undisputed fact that in the present case the last day of limitation happens to be a holiday. In view of Section 4 of the Limitation Act and the last day happens to be a public holiday, the day on which limitation expires, it is an established principle that whenever the last day of limitation happens to be a holiday the complaint has to be presented on the next working day, which shall be treated as the presentation of the complaint within time. Though the special enactment does not mention the exclusion of public holiday, it has to be inferred from the existing practice that whenever the last of day of limitation happens to be a public holiday that has to be excluded and it shall be declared that the filing of complaint on the next working day is within the period of limitation and it is not barred by limitation.
7. In the light of the above observations, the complaint presented on 13-12-1999 is within time and it is not barred by limitation. Therefore the judgment of the lower Court dated 17-9 2002 acquitting the accused for the offence punishable u/s 138 of the Act on the ground of limitation is set aside. The matter is remitted back to the lower Court with a direction to restore to its original file and after appraising the evidence already on record, the lower Court shall render a fresh judgment on merits by treating the complaint filed within time.
In the result the Criminal Appeal is allowed.
