# Mahesh Chandra Maheshwari v. Bhadohi Urban Cooperative Bank Ltd. Opposite Partiy

- **Citation:** (2020) 8 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Application U/S 482 No. 12606 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-maheshwari-v-bhadohi-urban-cooperative-bank-ltd-opposite-partiy-45889
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
482
&
Negotiable Instrument Act,1881-Sections
138,142(b)-quashing
of-summoning
order- challenge to-maintainability ofwhether complaint barred by period of
limitation prescribed u/s 142(b) of the Act
or not-counsel for applicant relied on the
overruled judgment of Apex Court while
for the purpose of calculating the period
of one month, u/s 142(b) of the Act, the
period has to be reckoned by excluding
the date on which cause of action arosethus, it cannot be said that the complaint
is ex-facie barred by time.(Para 3 to 21)
(E-6)
List of Cases Cited:-

## Text

8 All. Mahesh Chandra Maheshwari Vs. Bhadohi Urban Cooperative Bank Ltd.
671
Sections 149, 147, 452 relied by my
brother (Justice Om Prakash VII) would
be applicable.

7. The guidelines laid down in 2014
6 SCC 466, Navindra Singh and others
versus State of Punjab would apply to
the facts of this case. The material on
record would go to show that end of the
justice would justify exercising the
power under Section 482 of Criminal
Procedure Code. I am also supported in
my view by 2013 SCC OnLine Ald 5681,
Saifula versus State of U.P.

8. Before C.J.M., Agra the entire
proceedings of the Complaint Case
No.7339 of 2016 shall be defiled and the
parties shall not be summoned or asked
to remain present.

9. Order be communicated to the
Agra Court by e-mail as expeditiously as
possible.

10. This court is thankful to both
the counsels Shri Hans Nath Pandey and
Shri Shri R.C. Upadhyay for getting their
parties to settle the dispute during this
pandemic.
----------
(2020)08ILR A671
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 12606 of 2004
& Application U/S 482 No. 12605 of 2004

Mahesh Chandra Maheshwari ..Applicant
Versus
Bhadohi Urban Cooperative Bank Ltd.
 ...Opposite Partiy
Counsel for the Applicant:
Sri Anil Kumar Bajpai

Counsel for the Opposite Party:
A.G.A., Ajay Shanker Pandey

A. Criminal Law - Code of Criminal
Procedure,1973
-
Section
482
&
Negotiable Instrument Act,1881-Sections
138,142(b)-quashing
of-summoning
order- challenge to-maintainability ofwhether complaint barred by period of
limitation prescribed u/s 142(b) of the Act
or not-counsel for applicant relied on the
overruled judgment of Apex Court while
for the purpose of calculating the period
of one month, u/s 142(b) of the Act, the
period has to be reckoned by excluding
the date on which cause of action arosethus, it cannot be said that the complaint
is ex-facie barred by time.(Para 3 to 21)
(E-6)
List of Cases Cited:-

1. M/s Sil Import USA Vs M/s Exim Aides Silk
Exporters, Banglore (1999) 4 SCC 567

2. K. Bhaskaran Vs Sankaran Vaidhyan Balan
& ors. (1999) 7 SCC 510

3. ECON Antri Ltd. Vs Rom Industries Ltd. &
ors. (2014) 11 SCC 769

4. Saketh India Ltd. & ors. Vs India Securities
Ltd. (1999) 3 SCC 1

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Anil Kumar Bajpai,
learned counsel for applicant and learned
AGA for State of U.P. None appeared on
behalf of complainant despite the case having
been called in revise. Since it is an old matter,
hence, I proceed to decide this application
after hearing aforesaid counsels.

2. Application No. 12606 of 2004
has been filed under Section 482 of Code
of Criminal Procedure, 1973 (hereinafter
672 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as "Cr.P.C.") by accusedapplicant Mahesh Chandra Maheshwari
with a prayer to quash summoning order
dated 21.11.2000 and another order dated
15.11.2004 whereby objection filed by
accused-applicant
against
order
of
summoning has been rejected.

3. Facts, in brief, giving rise to the
Application No. 12606 of 2004 are that
M/s Bhadohi Urban Cooperative Bank
Limited (hereinafter
referred to as
"Cooperative Bank") advanced a loan to
applicant for a running medical shop. In
discharge of aforesaid loan, applicant
issued cheques No. 823486 and 823487
dated 29.03.2007 for Rs.50,000/-, each,
in favour of Cooperative Bank drawn on
Union Bank of India, Varanasi. Cheques
were deposited by Cooperative Bank for
collection on 24.08.2000 but Union Bank
returned the same vide Memo dated
24.08.2000 with the remark that fund was
insufficient in the account of applicant.
In
substance,
both
cheques
were
dishonoured. Notice was given by
Cooperative
Bank
to
applicant
on
06.09.2000 which was returned on
14.09.2000 as unclaimed. Complaint was
filed by Cooperative Bank on 31.10.2000
whereafter
Magistrate
recorded
statements of complainant and witnesses
under Sections 200 and 202 Cr.P.C. and
summoned accused-applicant for trial for
an offence under Section 138 of
Negotiable
Instruments
Act,
1881
(hereinafter referred to as "Act, 1881").
Accused-applicant filed objection to the
summoning order dated 21.11.2000 on
the ground that he has nothing to do with
M/s Hedes Multi Facets since he is not
the proprietor of the said firm and as per
address given, there existed a firm in the
name of Maheshwari & Maheshwari
since 1975 which is a joint family
business and accused-applicant is not the
owner of said firm also. He further said
that he had not taken any loan from
Cooperative Bank in his name. Loan, in
fact was advanced to one Ajita Prasad
Pandey son of late Kailash Nath Pandey,
resident of village Bhawanipur, Police
Station Gopi Ganj, District Ravidas
Nagar who has taken loan by forging
documents in the name of applicant and,
therefore, applicant is not liable to pay
any amount. He also raised objection that
complaint was not maintainable having
been filed by Assistant Manager who was
not
authorized
by
any
Letter
of
Authorization or Resolution of Board of
Directors of Cooperative Bank. He also
contended that proceedings were initiated
beyond the period prescribed under
Section 138(b) of Act, 1881, inasmuch
as, dishonoured cheques were returned to
complainant on 24.08.2000, notice was
issued on 06.09.2000 which was received
back unclaimed on 14.09.2000 but
complaint was filed on 31.10.2000,
hence, it was barred by period of
limitation
prescribed
under
Section
142(b) of Act, 1881.

4. Said objection was rejected by
Chief Judicial Magistrate concerned vide
order dated 15.10.2004. Sri Bajpai,
placed reliance on a Supreme Court's
judgement in M/s Sil Import USA Vs.
M/s
Exim
Aides
Silk
Exporters,
Banglore 1999 (4) SCC 567 in support
of his contention that complaint is barred
by time.

5. In the connected case i.e.
Application No. 12605 of 2004, similar
complaint has been filed wherein also
summoning
order
was
issued
on
21.11.2000 and objection of accusedapplicant was rejected on 15.10.2004.
8 All. Mahesh Chandra Maheshwari Vs. Bhadohi Urban Cooperative Bank Ltd.
673
Here, in connected case, cheque no.
823489 dated 30.03.2000 was issued for
a sum of Rs.2,60,000/- which was
returned by Union Bank of India with the
remark that fund was insufficient in the
account of applicant vide Memo dated
25.08.2000. Here also, notice was issued
by complainant on 06.09.2000 which was
returned unclaimed on 14.09.2000 and
complaint was filed on 31.10.2000.

6. Sri Anil Kumar Bajpai, learned
counsel appearing in both the matters,
states that complaints were filed beyond
the period prescribed under Section
142(b) of Act, 1881, therefore, are not
maintainable. Since both the matters can
be considered together and Sri Bajpai,
has advanced submissions on this aspect
collectively, hence, both are being
decided by this common judgement.

7. To consider the question of
limitation as argued by learned counsel
for applicant, Sections 138 and 142 of
Act, 1881, as existed then i.e. on
31.10.2000, are relevant, hence, both are
reproduced as under:-

"138 Dishonour of cheque for
insufficiency, etc., of funds in the
account. --Where any cheque drawn by a
person on an account maintained by him
with a banker for payment of any amount
of money to another person from out of
that account for the discharge, in whole
or in part, of any debt or other liability,
is returned by the bank unpaid, either
because of the amount of money standing
to the credit of that account is insufficient
to honour the cheque or that it exceeds
the amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to
have committed an offence and shall,
without prejudice to any other provisions
of
this
Act,
be
punished
with
imprisonment for a term which may be
extend to one year, or with fine which
may extend to twice the amount of the
cheque, or with both:

Provided
that
nothing
contained in this section shall apply
unless--

(a)
the
cheque
has
been
presented to the bank within a period of
six months from the date on which it is
drawn or within the period of its validity,
whichever is earlier;

(b) the payee or the holder in
due course of the cheque, as the case
may be, makes a demand for the
payment of the said amount of money by
giving a notice in writing, to the drawer
of the cheque, within fifteen days of the
receipt of information by him from the
bank regarding the return of the cheque
as unpaid; and

(c) the drawer of such cheque
fails to make the payment of the said
amount of money to the payee or, as the
case may be, to the holder in due course
of the cheque, within fifteen days of the
receipt of the said notice.

Explanation.--
For
the
purposes of this section, "debt or other
liability" means a legally enforceable
debt or other liability."

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

(a)
no
court
shall
take
cognizance of any offence punishable
674 INDIAN LAW REPORTS ALLAHABAD SERIES
under section 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.

(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under section 138."
(Emphasis added)

8. As per complaint, following
dates are relevant:

Date

Events
24.08.2000 Cheques were submitted
for collection by
complainant-Cooperative
Bank.
24.08.2000

Union Bank of India, Main
Branch, Varanasi vide
Memo of date informed
Bombay Mercantile
Cooperative Bank Limited,
Nai Sadak, Varanasi that
sufficient funds are not
available in the account of
applicant.

..
M/s Bombay Mercantile
Cooperative Bank Limited,
Nai Sadak, Varanasi
thereafter returned said
cheques unpaid to
Cooperative Bank.
06.09.2000 Registered notice sent to
applicant demanding
amount of dishonoured
cheque after informing the
factum of dishonouring of
cheques by Union Bank of
India.
14.09.2000 Notice received unclaimed
from Postal Department by
Cooperative Bank.
15.09.2000 Complainant informed
applicant orally also about
non-payment of cheque by
Bank and demanded
money.
31.10.2000 Complaint filed in the
Court of Judicial
Magistrate Ist, Gyanpur,
Bhadohi registered as
Criminal Case No. 435 of
2000 and 436 of 2000.

9. Section 138, proviso, Clause (a) of
Act, 1881 is apparently satisfied. Cheques
were presented to Union Bank within valid
period for its collection. Notice required to be
issued for demand vide proviso Clause (b) of
Section 138 of Act, 1881 within 15 days of
receipt of information from Bank regarding
return of cheques as unpaid was also given.
The date of notice is 06.09.2000. Thus,
aforesaid requirement is also satisfied and
notice was issued within the period
prescribed in Clause (b), proviso to Section
138 of Act, 1881. Now, Clause (c) proviso to
Section 138 of Act, 1881 gives 15 days' time
from the date of receipt of notice by
addressee to make payment.

10. In the present case, notice
returned unclaimed and received by
complainant on 14.09.2000. If this date is
taken to be due service of notice by
accused-applicant then 15 days' time
would expire on 29.09.2000.
8 All. Mahesh Chandra Maheshwari Vs. Bhadohi Urban Cooperative Bank Ltd.
675

11.

In
K.
Bhaskaran
Vs.
Sankaran Vaidhyan Balan and Others
1999 (7) SCC 510, it was held that if a
notice
is
returned
by
sender
as
unclaimed,
such
date
would
be
commencing date in reckoning the period
of 15 days contemplated in Clause (c) to
proviso of Section 138 of Act, 1881.
Since payment could have been made
upto 29.09.2000 but when it is not made,
cause of action arose on 30.09.2000.

12. The term "month" has not been
defined in Act, 1881 but it is defined in
Section 3(35) of General Clauses Act,
1897 (hereinafter referred to as "Act,
1897") and reads as under:-

"(35) "month" shall mean a
month reckoned according to the British
calendar."

(Emphasis added)

13. The definition of "month" in
Act, 1897, therefore, talks of a month of
British Calendar i.e. January, February
etc.

14. There are 12 months in a British
Calendar wherein 7 months have 31
days; 4 months have 30 days and one
month has 28 days except leap year when
it has 29 days. Therefore, number of days
in the month varies.

15. Thus, one aspect is "whether it
should
be
number
of
days
or
corresponding month irrespective of
number of days which has to be taken for
the purpose of Section 142(b) of Act,
1881". Secondly, "if it is number of days
i.e. 30 or 31 then whether it will include
the day when cause of action has arisen".
For example, if we take 30 days by
including the date of cause of action, it
will expire on 29.10.2000 but if we take
it 31 days then it will expire on
30.10.2000. However, if the date of cause
of action is excluded then period of
month will commence from 01.10.2000
and if it goes with the definition of month
in Act, 1897 then 31.10.2000 was well
within the period of one month as
contemplated under Section 142(b) of
Act, 1881 but if it is taken to be 30 days,
it will be contrary to term "month" since
legislature has not mentioned days but it
has used the term "month".

16. In this backdrop, I would
proceed to consider first "whether for
computing period of limitation under
Section 142(b), the date when cause of
action arose in the present case i.e.
30.09.2000 would be included or not".

17. Counsel for applicant has relied
on a Supreme Court's judgement in M/s
Sil
Import
USA
(supra)
which
obviously supports his submission but I
find
that
this
question
was
later
considered by a Larger Bench in ECON
Antri Ltd. Vs. Rom Industries Ltd.
and Others 2014 (11) SCC 769; Since
there
was
another
decision
taking
contrary view in Saketh India Limited
and
Others
Vs.
India
Securities
Limited 1999 (3) SCC 1, therefore,
reference was made for considering
correctness of aforesaid judgement by a
Larger Bench and it was considered by a
Bench of three Judges in ECON Antri
Ltd. (supra).

18. Upholding view taken in
Saketh India Limited and Others
(supra), Larger Bench said, where a
particular time is given from a certain
date within which act has to be done, the
676 INDIAN LAW REPORTS ALLAHABAD SERIES
day of the date of cause of action is to be
excluded.

19. Consequently, Larger Bench
held that M/s Sil Import USA (supra)
does not lay down correct law and upheld
view taken in Saketh India Limited and
Others (supra). Para-25 of ECON Antri
Ltd. (supra) reads as under:-

"25. Having considered the
question of law involved in this case in
proper perspective, in light of relevant
judgments, we are of the opinion that
Saketh
lays
down
the
correct
proposition of law. We hold that for the
purpose of calculating the period of one
month, which is prescribed under
Section 142(b) of the N.I. Act, the period
has to be reckoned by excluding the date
on which the cause of action arose. We
hold that SIL Import USA does not lay
down the correct law. Needless to say
that any decision of this Court which
takes a view contrary to the view taken in
Saketh by this Court, which is confirmed
by us, do not lay down the correct law on
the question involved in this reference.
The reference is answered accordingly. "

(Emphasis added)

20. Learned counsel for applicant in
the present case has relied on a
judgement which has already been
overruled by Supreme Court. In my view,
this is an attempt to mislead the Court. It
was not expected from a counsel of such
a long standing that he would cite an
overruled judgement.

21. Be that as it may, since
complaint in the present case, was filed
within one month i.e. October, 2000,
after excluding 30.09.2000, the day when
cause of action arose, it cannot be said
that complaint is ex-facie barred by time
provided in Section 142(b) of Act, 1881.

22. No other point has been argued.

23. Accordingly, both the applications
are hereby rejected.

24. Interim orders, if any, stand
vacated.
----------