K.K.C. Textile Mills and another vs Maize Products

M. Karpagavinayagam, J.—The petitioners have presented this revision challenging the order, dismissing the discharge petition in Crl. M.P.

No. 1516 of 1995 in C.C. No. 2145 of 1994 on the file of XIVth Metropolitan Magistrate, Egmore, Madras.

The facts are these :

The complainant/respondent sold 100 bags of maize starch powder to the petitioners/accused through the bill dated July 20, 1992. Towards the

said bill amount, the accused issued two cheques for a total sum of Rs. 41,600. The said cheques were deposited into the bank by the

complainant/respondent, but the same were returned with remarks ""insufficient funds"" on December 13, 1993.

Therefore, the complainant/respondent sent a registered notice demanding payment, on December 23, 1993, i.e., within 15 days from the date

of receipt of intimation that the cheques were dishonoured. The petitioners received the said notice on December 27, 1993. Though they did not

make the payment, they sent a reply dated January 17, 1994, acknowledging and admitting their liability.

The complainant, therefore, filed the complaint on February 11, 1994, i.e., within a month from the date of expiry of 15 days, the time given for

payment under the notice.

Raising preliminary objections, the petitioners/accused filed a petition for discharge. The complainant filed a counter. The learned magistrate

dismissed the said petition on the ground that the discharge petition is not maintainable in a summons case. Hence, this revision.

Learned counsel for the petitioners would submit that as per the ruling of the apex court in Jameel Khan, Proprietor, Oriental Leather Export v.

Thomas Cook Ltd. [1995] 1 L.W. (Crl.) 277 (SC), even in summons cases the petition for discharge is maintainable and as such the impugned

order is liable to be set aside.

Though I find some force in the contention raised by counsel for the petitioners, the impugned order dismissing the application for discharge

could be sustained on some other ground, since I am not able to accept the grounds for discharge urged by counsel for the petitioners. The first

ground is that there was no authorisation or power of attorney filed at the time of lodging of the complaint and as such the complaint could not be

said to be a valid one.

According to counsel for the respondent/complainant, the power of attorney has actually been produced before the court. He further submitted

that even the zonal manager has been examined before the court at the time of taking the sworn statement, that even otherwise, the zonal manager,

being connected with the company is competent to represent the company to prosecute the case. In view of this reply, I am of the view that the

point raised by counsel for the petitioners on this aspect, is not valid in law.

The next contention raised by counsel for the petitioners is that the complaint was not filed within a month from the date of expiry of 15 days,

the time given for payment and as such, the complaint has to be dismissed, on the ground that it was filed beyond the period of limitation.

According to the petitioners, they received the notice on December 27, 1993, and the 15th day expires on January 11, 1994. So the cause of

action arises on January 12, 1994. According to counsel for the petitioners, the term ""one month"" means 30 days and, therefore, the 30th day falls

on February 10, 1994, and so, on or before February 10, 1994, the complaint ought to have been filed. But, in the instant case, the complaint was

filed only on the 31st day, i.e., on February 11, 1994.

Arguing contra, counsel for the respondent/complainant would submit that one month means an English calendar month. Therefore, ""one

month"" in this case expires on February 11, 1994, since the cause of action arose on January 12, 1994. Therefore, the complaint was filed within

the period of limitation.

To substantiate their respective submissions, counsel for both the sides, cited various authorities. Counsel for the petitioners cited the following

authorities :

Misri Lal v. Jwala Prasad [1961] 1 ILR All 761

Kathayee Cotton Mills v. Gopala Pillai [1979] KLT 721

Bhikhalal Bhovan Vs. Sunni Vora Noormamad Abdul Karim and Others,

In Misri Lal v. Jwala Prasad [1961] 1 ILR (All) 761, the Division Bench of the Allahabad High Court has held thus :

Section 3(27) of the General Clauses Act which interprets ''month'' is inapplicable because that interpretation is to be adopted only when the

word is used in a statute and not when it is used in a private document like a notice to quit. But, even when it is used in the statute, it may be

interpreted to mean a period of 30 days, as was done in Vama Dev Desikar v. Murugess Mudali [1905] ILR 29 Mad 72. We, therefore, hold that

the notice required the appellant to quit after 30 days and was valid"".

In Kathayee Cotton Mills v. Gopala Pillai [1979] KLT 721, the Division Bench of the Kerala High Court has observed thus (headnote) :

In interpreting a statutory provision we have to look into the plain meaning of the language used therein, and if it does not give room for any

ambiguity that meaning has to be given to it in the absence of any contrary or different intention indicated expressly or at least by implication. In this

case, the term ''month'' has not been defined in the definition section, namely, section 2 of the Act. In common parlance a month is understood to

mean a period of 30 days. u/s 3(35) of the General Clauses Act, 1937, the number of days in a month has to be reckoned according to the British

calendar under which some months have 31 days while others have either 30 days, and one month having 28 or 29 days. In the absence of a

definition giving a different meaning there is no justification for departing from the meaning given to the term in common parlance.

The relevant portion in Bhikhalal Bhovan Vs. Sunni Vora Noormamad Abdul Karim and Others, is as follows :

In common parlance, the term ''month'' is hardly understood as a calendar month according to the Gregorian calendar, but it by and large means

''the space of time'' from a day in one month to the corresponding day in the next. This is the meaning of the term ''month'' given in the Concise

Oxford Dictionary, 1964 Edition. The term ''month'' has been explained also in the Bombay General Clauses Act, 1904. The term ''month'' as

defined in section 2(30) of the Bombay General Clauses Act, means ''a month reckoned according to the British calendar''. The term ''reckoned'' is

equivalent to the term ''calculated'' or ''counted''. If the Legislature wanted a month to mean only a compact unit of a calendar month, the normal

definition would have been as a British calendar month or a calendar month. The elaborate explanation given in the definition of the term ''month''

and particularly the reference to calculation clearly and pointedly suggest that what is intended to be referred to by the term is space of time

between the two dates of the two contiguous months.

Learned counsel for the respondent per contra, cited the following decisions :

Daryodh Singh Vs. Union of India and Others, .

Provas Chandra Poddar Vs. Visyaraju Kasi Viswanatham Raju and Another, .

Smt. Ram Kali Vs. Sia Ram and Others, .

Vasudevan (G.) v. Rajammal [1992] 1 MWN (Crl.) 241 (Mad).

It is held in Daryodh Singh Vs. Union of India and Others, , as follows (page 61) :

In its ordinary accepted sense the expression ''month'' means a ''calendar month'' and not a ''lunar month''. As to how a calendar month is to be

counted from a date which is not the first of the month has been described in paragraph 143 of Halsbury''s Laws of England, Volume 37, (Third

Edition) in the following words :

''When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month

immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month

which contains more days than the next succeeding month, the period expires at the end of the latter month''.

In Provas Chandra Poddar Vs. Visyaraju Kasi Viswanatham Raju and Another, it is observed thus :

In Halsbury''s Laws of England, Second Edition, Volume 17, Paragraph 176, the principle applicable to the case of this type has been laid down

thus :

''When the period prescribed in a calendar month running from any arbitrary date and not coinciding with any particular month in the calendar the

period cannot exceed in length the number of days in the month in which it starts, and when the second of the two months in which the period falls

is a month containing fewer days than those contained in the first month, the number of days in that period may be less than that of those of the first

month''.

In the same line, the other decisions are also available.

In Sugavanam (M.D.) v. Farook Commercial Corporation [1992] 1 MWN (Crl.) 239 (Mad) it is observed as follows :

As such, I am clear, that the cause of action would arise only after expiry of 15 days from the date of receipt of the notice. The payee can file a

complaint within a month thereof. In the instant case, notice was received by the accused on May 16, 1991. Fifteen days therefrom will take us to

May 31, 1991. One month thereof will take us to June 30, 1991. The complaint has been laid on June 26, 1991. Hence, it is within time.

Section 142 of the Negotiable Instruments Act provides thus :

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) -

(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.

Section 138(c) of the Negotiable Instruments Act, 1881, states that the cause of action arises once the drawer of the cheque fails to make

payment of the said amount to the payee. As already held by this court, the cause of action arises after the expiry of the said 15 days.

In this case, as admitted by both, January 11, 1994, is the date of expiry of 15 days, the time given and the cause of action arises on January

12, 1994. The complaint was filed on February 11, 1994. But, dispute arises over the term ""one month"". According to counsel for the petitioners,

one month"" means 30 days, which falls on February 10, 1994. According to counsel for the respondent, the term ""one month"" does not connote

30 days"" but it means an English calendar month and the last day of the month falls on February 11, 1994, and the complaint was filed on that

date.

The term ""one month"" is not defined in the Act. Under the General Clauses Act, 1897, u/s 3(35), a ""month"" is defined as ""a month shall mean a

month reckoned according to the British calendar"".

For ascertaining the meaning of the expressions not defined in the Act, reference must be made to the definition of that expression with

reference to the meaning contained in General Clauses Act. Even in the enactment, the definition contained in this Act would certainly apply to the

word used in the statutes.

Therefore, the term ""one month"" as contained in section 142 of the Negotiable Instruments Act would be a calendar month and as per section

3(35) of the General Clauses Act, 1897, the number of days in a month reckoned according to the British calendar under which some months have

31 days and other have 30 days, while one month has 28, in the leap year 29 days.

So, in the light of this definition there is no difficulty in coming to the conclusion that ""one month"" being a calendar month cannot be restricted to

the meaning of ""30 days"".

If it was the intention of the Legislature that only ""30 days"" time is to be given for filing the complaint, then it would have certainly incorporated

in the section in unambigious terms as ""30 days"" instead of ""one month"", because it is made clear that in all other aspects, the period was mentioned

in terms of days. For instance, the notice must be issued within 15 days from the date of dishonour and there must be 15 days'' grace time to be

given to the drawer of the cheque for payment after receipt of the notice.

As indicated earlier, the cause of action arises on the expiry of the 15th day. So, only for filing of the complaint, the term or period ""one month

is used instead of ""30 days"". That itself would show that the meaning of ""month"" is the English calendar month. This could be understood in this

way :

The month of February has 28 days and in the leap year it has got 29 days. Some months have 30 days and some have 31 days. For example,

if the cause of action arises on the 28th day of February, the complaint must have been filed on or before 27th day of March and the number of

days in between is 28 days.

If the cause of action arises on 29th day of February, the complaint must have been filed on or before 28th day of March, in which the total

number of days is 29.

If the cause of action arises on 30th April, then the complaint must have been filed on or before 29th May. The number of days taken in this

case would be 30 days.

If the cause of action arises on March 31, then the complaint must have been filed on or before April 30, and in that case, one month means 31

days.

If the cause of action arises on 29th or 30th or 31st day of January, then the complaint must have been filed on or before 28th or 29th day of

February as the case may be, and in that case, ""the month"" means 31/32, 30/31 and 29/30 days.

Therefore, the meaning of ""one month"" given as ""30 days"" as interpreted by counsel for the petitioners, is not correct, since, if such a meaning is

given, in my view, the object of the Act would get defeated. So, the term ""one month"" shall mean an English calendar month.

In the instant case, the cause of action arose on January 12, 1994, and being a calendar month, the last day falls on February 11, 1994, on

which day the complaint was filed. Therefore, the complaint was filed within time.

In view of the above observations, this revision is liable to be dismissed and hence, the same is dismissed. Consequently, Crl. M.P. Nos. 3552

and 3553 of 1995 are also dismissed.