ORDER
V.M. Jain, J.
1. This petition under Section 482, Cr.P.C. has been filed by the accused-petitioners seeking quashment of the criminal complaint dated 20-8-1990 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as the Act) filed by the complainant respondent and also seeking quashment of order dated 10-9-1991 passed by the Judicial Magistrate, whereby the accused were ordered to be summoned to face trial for the offence under Section 138 of the Act and the order dated 13-10-1997 passed by the Judicial Magistrate holding that the complaint in respect of cheque for Rs. 35,189/- was well within time and directing that notice shall be issued in the criminal complaint only in respect of the said cheque and also challenging the order dated 21-9-99 passed by the Additional Sessions Judge, whereby the Revision Petition filed by the accused-petitioners against the order dated 13-10-1997 was dismissed.
2. The facts in brief are that on 27-8-1990, complainant-respondent M/s. Oswal Steels had filed a criminal complaint: under Section 138 of the Act read with Section 420, IPC against the accused-petitioners with the allegations that accused-petitioner No. 2 was a partnership concern and that accused No. 1 was its partner and was looking after the day to day affairs and business of accused No. 2 being its partner and as such both the accused were liable for all the acts of accused No. 2 firm. It was alleged that the accused had been making purchases of steel boards from the complainant and that accused No. 1 on behalf of accused No. 2 purchased steel boards vide bills dated 19-7-1989 and 16-10-1989 and issued three cheques against the price of the steel boards, vide cheques dated 30-6-1990 amounting to Rs. 35,189.75 p. cheque dated 6-6-1990 amounting to Rs. 30,000/- and cheque dated 30-5-1990 for Rs. 26,727/-, all drawn on the State Bank of India, Miller Ganj Branch, Ludhiana and in favour of the complainant. It was alleged that on the assurance given by the accused that the cheques would be honoured, the complainant had accepted those cheques. It was alleged that those cheques were presented for payment by the complainant in the Syndicate Bank but all the said cheques were returned by the Bank as unpaid along with memo with the remarks “refer to drawer”. It was alleged that on receipt of the intimation from the Bank regarding the dishonour of the cheques, the complainant sent notices dated 26-6 1990 and 9-7-1990 calling upon the accused to make the payment of the dishonoured cheques but the accused failed to make the payment. Photostat copies of the dishonoured cheques, memos received from the Bank, notices and postal receipts were attached with the complaint. It was alleged that the accused had the dishonest intention and in this manner the accused had cheated the complainant for Rs. 91,916.75. It was accordingly prayed that the accused be sumoned, tried and punished for the offence under Section 138 of the Act read with Section 420, IPC.
3. After recording the preliminary evidence, the learned Magistrate ordered the summoning of the accused for the offence under Section 138 of the Act, vide order dated 10-9-1991. Thereafter, application dated 2-8-1994 was moved on behalf of the accused for recalling the aforesaid order dated 10-9-1991. This application was opposed by the complainant by filing reply dated 10-8-1994. Vide order dated 27-8-1994, the learned Magistrate dismissed the said application. Aggrieved against the same, the accused filed revision petition before the Sessions Court. The learned Sessions Court remanded the case to the trial Magistrate for considering the question regarding limitation. Thereupon, the learned Magistrate vide order dated 13-10-1997 found that the criminal complaint with regard to cheque for Rs. 35,189/- was well within limitation and accordingly it was directed that the notice in this complaint shall be served only in respect of the said cheque. Aggrieved against the same, the accused filed revision-petition before the Sessions Court. Vide order dated 21-9-1999 the Additional Sessions Judge, dismissed the revision-petition. Aggrieved against the same, the accused filed the present petition under Section 482, Cr. P.C. in this Court seeking quashment of the criminal complaint and the aforesaid orders passed by the Courts below. The lower Court record was summoned.
4. No one came present on behalf of the complainant-respondent, at the time of arguments.
5. I have heard the learned counsel for the accused-petitioners and have gone through the record carefully.
6. The learned counsel appearing for the accused-petitioners submitted before me that the present complaint under Section 138 of the Act was barred by limitation, even in respect of the cheque for Rs. 35,189.75 p.
7. However, I find no force in this submission of the learned counsel for the accused-petitioners. Admittedly, the case is still at the initial stage. After the filing of the complaint, the complainant had produced preliminary evidence, whereupon the accused were ordered to be summoned. So far, neither the notice of accusation has been served upon the accused-petitioners nor the case has been fixed for recording complainant’s evidence. In the present case, the dispute is in respect of the cheque dated 30-6-1990 for a sum of Rs. 35,189.75 p, Exhibit P. 11 is the memo dated 3-7-1990 vide which the State Bank of India, miller Ganj Branch, Ludhiana had intimated the Syndicate Bank about the dishonour of the cheque on the ground “refer to drawer.” Exhibit P. 10 is the memo received by the complainant from Syndicate bank informing the complainant that the aforesaid cheque was returned unpaid with the objection “refer to drawer.” Exhibit P.5 is the said cheque dated 30-6-1999 for Rs. 35,189.75 p. Exhibit P. 12 is the carbon copy of the notice sent by the complainant to the accused. The said notice is dated 9-7-1990. Exhibit P. 14 is the postal receipt showing that the said notice dated 9-7-1990 was sent by registered post on 11-7-1990. The notice was sent by the complainant from Ludhiana to the accused at Ludhiana. In the normal course, the said notice would have reached the accused either on the very next day i.e. on 12-7-1990 or on the third day i.e. on 13-7-1990. The accused was required to make the payment within 15 days thereof. Since the payment was not made in this case, the complainant could have filed the complaint within a month of the date on which the cause of action had arisen i.e. when the accused failed to make the payment. In the present case, as referred to above, the complaint was filed on 27-8-1990.
8. In Saket India Ltd. v. India Securities Ltd., 1999 SCC (Cri) 329 : (1999 Cri LJ 1822), it was held by the Hon’ble Supreme Court that Section 12(1) of the Limitation Act, 1963 specifically provides that in computing the period of limitation in any suit etc. the day from which such period is to be reckoned shall be excluded and similar provision has been made in Section 12(2) for appeal etc. It was further held that the same principle is also incorporated in Section 9 of the General Clauses Act, 1897. It was further held that there was no reason for not adopting the aforesaid rule incorporated in the Limitation Act and General Clauses Act. It was further held that ordinarily in computing the time, the rule observed is to exclude the first day and to include the last day and by applying the said rule, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. In the reported case, the period of 15 days expired on 14-10-1995 and as such the cause of action for filing the complaint would arise from 15-10-1995 is to be excluded for counting the period of one month and as such the complaint filed on 15-11-1995 was within time.
9. As referred to above, after the cheque in question was dishonoured, the complainant sent the notice dated 9-7-1990 on 11-7-1990. The accused were required to make the payment within 15 days of the receipt of the said notice. Admittedly, the payment was not made. The complainant could file the complaint within one month of the date on which the cause of action had arisen, as provided under Section 142 of the Act. The cause of action would arise if the accused fail to make the payment within the stipulated period. In the present case, as referred to above, the complaint was filed on 27-8-1990. Even if it is taken that the registered notice sent by the complainant on 11-7-1990 was received by the accused on 12-7-1990, the date 12-7-1990 is to be excluded and the accused were required to make the payment up to 27-7-1990. As per the law laid down by the Hon’ble Supreme Court, in Saket India Ltd.’s case (1999 Cri LJ 1822) (supra), if the period of 15 days had expired on 27-7-1990, the cause of action for filing the complaint would arise from 28-7-1990 and the said date i.e. 28-7-1990 is to be excluded for counting the period of one month and as such the criminal complaint filed on 27-8-1990 was well within time and it could not be said that the complaint was beyond limitation.
10. In view of the above, in my opinion, from the material available on the record, the Courts below were perfectly justified in holding that the present complaint was within time, in respect of the cheque for Rs. 35,189.75 p.
11. It was then submitted before me by the learned counsel for the accused-petitioners that the complaint was liable to be dismissed since in the criminal complaint it had nowhere been mentioned by the complainant that the notice was served upon the accused and if so when. Reliance was placed on Shakti Travel and Tours v. State of Bihar (2000) 7 JT (SC) 56.3 : (2001 AIR SCW 2307). However, I find no force in this submission of the learned counsel for the petitioners. Admittedly, the case is still at the initial stage. After recording preliminary evidence, the accused-petitioners were ordered to be summoned for the offence under Section 138 of the Act. So far, notice of accusation has also not been served upon the accused. As per the allegations made in the complaint and the preliminary evidence led by the complainant, including oral and documentary evidence, after the cheque in question was dishonoured and information in this regard was received vide memo dated 23-7-1990, the complainant had sent the notice dated 9-7-1990, which was sent by registered post on 11-7-1990. Since the accused had failed to make the payment within 15 days, the complainant filed the criminal complaint within one month. Under these circumstances, in my opinion, the criminal complaint and the various orders passed by the Courts below cannot be quashed in the present petition under Section 482, Cr. P.C. at this stage, when the notice of accusation has not been served upon the accused and the complainant has not produced any evidence in support of his case.
12. In Raj Lakshmi Mills v. Shakti Bhakoo (2002) 8 SCC 236, the High Court had set aside the order summoning the accused on the ground that he was not incharge or responsible for the conduct of the business. However, the Hon’ble Supreme Court set aside the order of the High Court observing that at the stage of summoning when evidence was yet to be led by the parties, the High Court could not, on an assumption of facts, come to a finding of fact that the respondent was not responsible for the conduct of the business. Resultantly, the order passed by the High Court was set aside.
13. In M.M.T.C. Ltd. v. MEDCHL Chemicals and Pharma (P.) Ltd., 2002 SCC (Cri) 121 : (2002 Cri LJ 266), it was held by the Hon’ble Supreme Court that the law was well settled that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It was further held that the burden of proof that there was no existing debt or liability was on the respondents and this they had to discharge at the stage of trial and at this stage merely on the basis of averments in the petitions filed by them, the High Court could not have concluded that there was no existing debt or liability.
14. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 4 Rec Cri R 309 : (1999 Cri LJ 4606) (SC), the Hon’ble Supreme Court had placed reliance upon the provisions of Section 27 of the General Clauses Act and it was held that the principle incorporated in Section 27 could profitably be imported in a case where the sender had despatched the notice by post with a correct address written on it and then it could be deemed to have been served on the sendee unless he proves that it was not really served and he was not responsible for such non-service. It was further held that any other interpretation can lead to a tenuous position as the drawer of the cheque, who is liable to pay, would resort to the strategy of subterfuge by successfully avoiding the notice.
15. In S.A. Nanjundeswara v. Varlak Agrotech (P.) Ltd., 2004 SCC (Cri) 527 : (AIR 2002 SC 477), it was held by the Hon’ble Supreme Court that the High Court exceeded its jurisdiction by invoking the powers under Section 482, Cr. P.C. and quashing the proceedings. It was held that the High Court can be justified in quashing the proceedings only if it comes to the conclusion that even the statements taken on face value, do not make out any offence.
16. In Monaben Ketanbhai Shah v. State of Gujarat, 2004 SCC (Cri) 1857 : (2004 Cri LJ 4249), it was held by the Hon’ble Supreme Court that the power of quashing is required to be exercised very sparingly and where, read as a whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. On the other hand, it is the duty of the Court to discharge the accused if taking everything stated in the complaint as correct and construing the allegations made therein liberally in favour of the complaint, the ingredients of the offence are altogether lacking.
17. In view of the law laid down by the Hon’ble Supreme Court in various cases, referred to above, in my opinion, at this stage no case is made out for quashing the criminal complaint merely on the ground that the complainant in the complaint had not specifically alleged that the notice was duly served upon the accused.
18. No other point has been urged before me in this petition.
19. For the reasons recorded above, finding no merit in this petition, the same is hereby dismissed.
20. Since vide order dated 14-1-2000, further proceedings were stayed by this Court, the petitioners through their counsel are directed to appear before the learned Magistrate on 30-3-2005 for further proceedings in accordance with law. Furthermore, since the complainant- respondent is not represented by a counsel in this Court, it is directed that the learned Magistrate shall issue notice to the complainant and thereafter shall proceed with the complaint in accordance with law.