MOUNT LITERA ZEE SCHOOL AND ANOTHERversusSTATE OF UP AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 10320 of 2026

Mount Litera Zee School And Another
                                                           .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                     :   Shreya Gupta
Counsel for Opposite Party(s)                :   G.A., Sumit Daga

Court No. - 74
                      HON'BLE DEEPAK VERMA, J.

1. Heard Ms. Shreya Gupta, learned counsel for the applicants; Sri Sumit
Daga, learned counsel for the opposite party no.2; A.G.A for the State and
perused the record.

2. Instant application has been filed to quash the order dated 29.01.2026
(Annexure No.1) passed by the Presiding Officer, Additional Court, 138
N.I. Act, Muzaffar Nagar as well as entire proceedings of Complaint Case
No. 3078 of 2017 (M/s A.S.J. Developers Vs. Mount Litera Zee School),
under Section 138 of Negotiable Instruments Act, 1881, Police Station
Nai Mandi, District Muzaffar Nagar, pending before the Presiding
Officer, Additional Court, 138 N.I. Act, Muzaffar Nagar.

3. The facts and dispute are that opposite party no.2, ASJ Developers a
partnership firm, filed present complaint against the applicants alleging
that applicants tendered a cheque amounting to Rs.2,50,000/- bearing
cheque No.936010 dated 29.07.2017 towards part payment of monthly
rent of one premises taken on temporary lease for running of school.
When the cheque was presented in the bank, it was returned unencashed
with report of stop payment by the applicants on 11.08.2017. Thereafter,
the complainant issued statutory notice and demand was not fulfilled then
present complaint has been lodged.

4. Counsel for the applicants submits that the complaint has been lodged
with false and frivolous facts and present application has been filed
against the order dated 29.01.2026 by which the application of the
applicants in regard to non maintainability of the complaint on account of
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notice issued to applicants after thirty days and notice has been sent to
applicant on 31st day one day delay. The learned Magistrate vide order
dated 29.01.2026 rejected the application of the applicants observing that
notice issued by the opposite party no.2 under Section 138 (b) of N.I.Act,
was sent in valid statutory period. The learned Magistrate while
calculating the period has observed that the last day i.e. 30th day as
provided under the Act for sending notice within thirty days fell on
Sunday, as such, notice given to the applicant on 31st day would be
considered in time in view of the provisions under Section 10 of the
General Clauses Act, which provides that if the last day of the limitation
period falls on holiday or Sunday, then next day would be considered as
in time. Further submission is that the observation made by the learned
Magistrate is illegal and against the provisions of Apex Court Judgment
and liable to be set aside. The Hon. Apex Court as well as other Courts
and Co-ordinate Bench of this Court have observed that General Clauses
Act would not be applicable under Section 138 N.I. Act. The Hon. Apex
Court in paragraphs 21, 23 and 25 of the judgement in Econ Antri Ltd.
Vs. Rom Industries Ltd. and Another 2014 3 SCC(Cri) 551 has held
thus:

"21. In this connection we may also usefully refer to the judgment of the Division
Bench of the Bombay High Court in Vasantlal Ranchhoddas Patel v. Union of India
[Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] which is
approved by this Court in Gopaldas Udhavdas Ahuja v. Union of India [(2004) 7 SCC
33 : 2004 SCC (Cri) 1830] , though in different context. In that case the premises of
the appellants were searched by the officers of the Enforcement Directorate. Several
packets containing diamonds were seized. The appellants made an application, for
return of the diamonds, to the learned Magistrate, which was rejected. Similar prayer
made to the Single Judge of the Bombay High Court was also rejected. An appeal was
carried by the appellants to the Division Bench of the Bombay High Court. It was
pointed out that under Section 124 of the Customs Act, 1962, no order confiscating
any goods or imposing any penalty on any person shall be made unless the owner of
the goods or such person is given a notice in writing with the prior approval of the
officer of Customs not below the rank of an Assistant Commissioner of Police,
informing him of the grounds on which it is proposed to confiscate the goods or to
impose a penalty. Under Section 110(1) of the Customs Act, 1962 a proper officer,
who has reason to believe that any goods are liable to confiscation may seize such
goods. Under sub-section (2) of Section 110 of the Customs Act, 1962:

“[w]here any goods are seized under sub-section (1) and no notice in respect thereof
is given under clause (a) of Section 124 within six months of the seizure of the goods,
the goods shall be returned to the person from whose possession they were seized”.
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Under proviso to Section 110 sub-section (2), however, the Collector could extend the
period of six months on sufficient cause being shown. It was argued that the Customs
Officers had seized the goods within the meaning of Section 110 of the Customs Act,
1962 on 4-9-1964. The notice contemplated under Section 124(a) was given after 3-3-
1965, that is, after the period of six months had expired. As per Section 110(2), notice
contemplated under Section 124(a) of the Customs Act, 1962 had to be given within
six months of the seizure of the goods, and, therefore, notice issued after the expiry of
six months was bad in law and, hence, the Collector of Customs was not competent to
extend the period of six months under the proviso to sub-section (2) of Section 110 as
he had done. Therefore, no order confiscating the goods or imposing penalty could
have been made and the goods had to be returned to the appellants. It was argued that
Section 9 of the General Clauses Act, 1897 has no application because the words
“from” and “to” found in Section 9 of the General Clauses Act, 1897 are not used in
sub-section (2) of Section 110 of the Customs Act, 1962. This submission was rejected
and Section 9 of the General Clauses Act, 1897 was held applicable.

Speaking for the Bench Chainani, C.J. observed as under:

“10. … The principle underlying Section 9 has been applied even in the cases of
judicial orders passed by courts, even though in terms the section is not applicable.
See Ramchandra Govind Unavne v. Laxman Savleram Ronghe [AIR 1938 Bom 447] ,
Dharamraj Mahadeo v. Commr. [AIR 1957 Bom 154] , Puran Chand v. Mohd. Din
[AIR 1935 Lah 291] , Marakanda Sahu v. Lal Sadananda Singh [AIR 1952 Ori 279]
and Official Liquidator v. N. Padmanabha Menon [(1954) 2 MLJ 44] . The material
words in sub-section (2) of Section 110 are ‘within six months of the seizure of the
goods’. In such provisions the word ‘of’ has been held to be equivalent to ‘from’: see
Williams v. Burgess [(1840) 12 Ad & El 635 : 113 ER 955] . In that case Section 1 of
the relevant statute enacted that warrants of attorney shall be filed ‘within twenty-one
days after the execution’.

Section 2 enacted that unless they were ‘filed as aforesaid within the said space of
twenty-one days from the execution’, they and the judgment thereon shall be void
subject to the conditions specified in the section. The warrant of attorney was
executed on 9-12-1839 and it was filed, and judgment entered up on the 30th
December. It was held that in computing the period of 21 days the day of execution
must be excluded. Reliance was placed on Fallon, ex p [(1793) 5 TR 283 : 101 ER
159] in which the word used was ‘of’ and not ‘from’. It was observed that ‘of’, ‘from’
and ‘after’ really meant the same thing and that no distinction could be suggested
from the nature of the two provisions. In Stroud's Judicial Dictionary, 1953 Edn., Vol.
3 in Note (5) under the word ‘of’, it has been observed that ‘of’ is sometimes the
equivalent of ‘after’ e.g. in the expression ‘within 21 days of the execution’. The
principle underlying Section 9 of the General Clauses Act cannot therefore, be held to
be inapplicable, merely because the word used in sub-section (2) of Section 110 is ‘of’
and not ‘from’.”

The relevant extracts from Halsbury's Laws of England [ 3rd Edn., Vol. 37, pp. 95-96]
were quoted. They read as under:
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“11. … ‘168. Exclusion of first day.—The general rule in cases in which a period is
fixed within which a person must act or take the consequences is that the day of the
act or event from which the period runs should not be counted against him.

This general rule applies irrespective of whether the limitation of time is imposed by
the act of a party or by statute; thus, where a period is fixed within which a criminal
prosecution or a civil action may be commenced, the day on which the offence is
committed or the cause of action arises is excluded in the computation.’”

In the circumstances, it was held in Vasantlal Ranchhoddas Patel case [Vasantlal
Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138] that the day on which the
goods were seized has to be excluded in computing the period of limitation
contemplated under sub-section (2) of Section 110 and therefore the notice was issued
within the period of limitation. It is pertinent to note that under Section 110(2) of the
Customs Act, notice had to be given within six months of the seizure of the goods.
Similarly, under Section 142(b) of the NI Act, the complaint has to be made within one
month of the date on which cause of action arose. The view taken in Vasantlal
Ranchhoddas Patel [Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom
138] meets with our approval.

23. Reliance placed on Danial Latifi [Danial Latifi v. Union of India, (2001) 7 SCC
740 : (2007) 3 SCC (Cri) 266] is totally misplaced. In that case the Court was
concerned with Section 3(1)(a) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986. Section 3(1)(a) provides that a divorced woman shall be entitled
to a reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former husband. This provision is entirely different from
Section 142(b) of the NI Act, which provides that the complaint is to be made “within
one month of the date on which the cause of action arises” (emphasis supplied).

25. Having considered the question of law involved in this case in proper perspective,
in the light of relevant judgments, we are of the opinion that Saketh [Saketh India Ltd.
v. India Securities Ltd., (1999) 3 SCC 1 : 1999 SCC (Cri) 329] 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 NI Act, the period has to be
reckoned by excluding the date on which the cause of action arose. We hold that SIL
Import, USA [SIL Import, USA v. Exim Aides Silk Exporters, (1999) 4 SCC 567 : 1999
SCC (Cri) 600] 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 [Saketh India
Ltd. v. India Securities Ltd., (1999) 3 SCC 1 : 1999 SCC (Cri) 329] 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."

5. In Shivnath Suryoba Gaonkar Vs. Bicholim Marchant Urban
Cooperative Credit Society Pvt. Ltd. 2024: BHC-GOA:1693 in which
the Bombay High Court has held thus:

"41. Similarly, the method by which demand notice in writing to be forwarded is not
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disclosed under the Act. The only condition is that there must be a demand for the
money mentioned in the cheque in writing. Thus, such demand in writing could be
communicated to the drawer of the cheque even by hand delivery by taking
acknowledgment, sending it by email or by courier service or by any other mode.
Thus, it is not necessary that such notice must be dispatched by the post department
under acknowledgment. It is no doubt true that in the present matter notice was
forwarded through the post department on the 31st day.

42. For the purpose of claiming benefit of Section 10 of the General Clauses Act, first
of all the complainant has to disclose it in its complaint and then prove it by leading
evidence. Admittedly, the complaint is clearly silent as to when notice was actually
dispatched. Even the verification of the complainant would go to show that notice was
sent on 6.11.2020 which is found in paragraph 9 of the statement of the complainant
recorded under Section 200 of Cr.P.C."

6. The Hon. Apex Court in Kamlesh Kumar Vs. State of Bihar and
Another AIR 2014 SC 660 has observed that:

"11. It is thus clear that period of limitation is not to be counted from the date when
the cheque in question was presented in the first instance on 25-10-2008 or the legal
notice was issued on 27-10-2008, inasmuch as the cheque was presented again on 10-
11-2008. For the purposes of limitation, insofar as the legal notice is concerned, it is
to be served within 30 days of the receipt of information by the drawee from the bank
regarding the return of the cheque as unpaid. Therefore, after the cheque is returned
unpaid, notice has to be issued within 30 days of the receipt of information in this
behalf. That is the period of limitation provided for issuance of legal notice calling
upon the drawer of the cheque to make the payment. After the sending of this notice 15
days' time is to be given to the noticee, from the date of receipt of the said notice to
make the payment, if that is already not done. If the noticee fails to make the payment,
the offence can be said to have been committed and in that event the cause of action
for filing the complaint would accrue to the complainant and he is given one month's
time from the date of cause of action to file the complaint.

12. Applying the aforesaid principles, in the present case, we find that the cheque was
presented, the second time, on 10-11-2008. The complainant, however, sent the legal
notice on 17-12-2008 i.e. much after the expiry of the 30 days. It is clear from the
complaint filed by the complainant himself that he had gone to the Bank for
encashment of the cheque on 10-11-2008 but the cheque was not honoured due to the
unavailability of the balance in the account.

13. The crucial question is as to on which date the complainant received the
information about the dishonour of the cheque? As per the appellant, the respondent
complainant received the information about the dishonour of the cheque on 10-11-
2008. However, the respondent complainant has disputed the same. However, we
would like to add that at the time of arguments the aforesaid submission of the
appellant was not refuted. After the judgment was reserved, the complainant has filed
an affidavit alleging therein that he received the bank memo of the bouncing of the
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cheque on 17-11-2008 and therefore, the legal notice sent on 17-12-2008 is within the
period of 30 days from the date of information. Normally, we would have called upon
the parties to prove their respective versions before the trial court by leading their
evidence. However, in the present case, as rightly pointed out by the learned Senior
Counsel for the appellant, the complainant has accepted in the complaint itself that he
had gone to the Bank for encashment of cheque on 10-11-2008 and the cheque was
not honoured due to insufficiency of funds, thereby admitting that he came to know
about the dishonour of the cheque on 10-11-2008 itself. It is for this reason that the
appellant has filed a reply-affidavit stating that this is an afterthought plea as no
material has been filed before the court below to show that the Bank had issued a
memo about the return of the cheque which was received by the complainant on 17-
11-2008. The specific averment made in the complaint in this behalf is as under:

“Subsequently the complainant again went to encash the cheque given by the accused
on 10-11-2008 which again bounced due to unavailability of balance in the accused's
account.”It is, thus, clear from the aforesaid averment made by the complainant
himself that he had gone to the Bank for encashing the cheque on 10-11-2008 and
found that because of unavailability of sufficient balance in the account, the cheque
was bounced. Therefore, it becomes obvious that he had come to know about the same
on 10-11-2008 itself. In view of this admission in the complaint about the information
having been received by the complainant about the bouncing of the cheque on 10-11-
2008 itself, no further enquiry is needed on this aspect.

14. It is, thus, apparent that the complainant received the information about the
dishonour of the cheque on 10-11-2008 itself. However, he did not send the legal
notice within 30 days therefrom. We, thus, find that the complaint filed by him was not
maintainable as it was filed without satisfying all the three conditions laid down in
Section 138 of the NI Act as explained in para 12 of the judgment in MSR Leathers
[MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424 :
(2013) 2 SCC (Cri) 458] , extracted above."

7. Learned counsel for the applicant has drawn the attention of the Court
towards Sections 9 and 10 of the provision of General Clauses Act and
argued that provision under Section 10 of the General Clauses Act is not
applicable in the present case as Section 10(1) would be applicable only
those Act or Regulation made after the commencement of this Act. The
N.I. Act is of 1881 before the commencement of the General Clauses Act
1897. Counsel for the applicant further submitted that in view of the Apex
Court's judgment, the finding recorded by the trial court is perverse and
liable to be set aside.

8. Counsel for the opposite party no. 2 vehemently opposed the
submission raised by counsel for the applicants and submitted that this is
third time of litigation. Earlier, the applicants filed Application under
Section 482 Cr.P.C. No. 10583 of 2019 which has been dismissed by the
order dated 26.08.2019 which is quoted below:
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                                     7


"Heard learned counsel for the applicant, Sri Amit Daga, learned counsel for the
complainant, learned AGA for the State and perused the application.

This application is misconceived and the same is hereby rejected."

9. Thereafter, the applicants filed application under Section 528 BNSS
No.40190 of 2025 and the Co-ordinate Bench of this Court vide order
dated 18.11.2025 set aside the impugned order dated 04.09.2025 and
allowed the application and remanded back the matter for fresh
consideration with observation that:

"16. It is also not in dispute between the parties that there is no such averment or
evidence in the statement of the complainant that on 15.8.2017 the dishonour memo
was received. Although, learned counsel for the opposite party no.2 submits that since
the objection in respect of the limitation was raised at the first time by the applicant as
such the aforesaid stand was taken in objection of opposite party no.2.

17. It is to be seen that the question of limitation under proviso (b) to Section 138 N.I.
Act is required to be decided on the basis of averment made in the complaint and the
statement of the complainant. If the objections are filed by the complainant in respect
of an application filed by the accused-applicant for dismissal of the complaint case
and in the objection any new fact has entered while deciding the application, it has to
be seen by the trial court whether such averment was ever made in the complaint or in
the statement of the complainant before the court concerned. The finding recorded by
the trial court by relying upon the fact that on 15.8.2017 the return memo has been
received is wholly perverse and is not based on any material evidence on record. It
has not been shown to this Court that such fact has been stated in the evidence or in
the complaint before the court concerned."

10. Counsel for the opposite party no.2 further argued that the order
challenge herein is just and proper. The learned Magistrate has rightly
considered all aspects and rejected the objection of the applicants and
considered that the complaint filed by the opposite party no.2 is in time
and rightly considered Section 10 of General Clauses Act. The order
challenge herein dated 29.01.2026 does not require any interference.
Counsel for the complaint has placed reliance over Paragraphs 7 and 8 of
the judgment of M/s Saketh India Ltd. and others Vs. M/s India
Securities Ltd. 1999 AIR (SC) 1090 which are quoted below:

"7. The aforesaid principle of excluding the day from which the period is to be
reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. Section
12(1) specifically provides that in computing the period of limitation for any suit,
appeal or application, the day from which such period is to be reckoned, shall be
excluded. Similar provision is made in sub-section (2) for appeal, revision or review.
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The same principle is also incorporated in Section 9 of the General Clauses Act, 1897
which, inter alia, provides that in any Central Act made after the commencement of
the General Clauses Act, it shall be sufficient, for the purpose of excluding the first in
a series of days or any other period of time, to use the word "from" and for the
purpose of including the last in a series of days or any other period of time, to use the
word "to".

8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case
which is consistently followed and which is adopted in the - General Clauses Act and
the Limitation Act. Ordinarily in computing the time, the rule observed is to exclude
the first day and to include the last. 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 the receipt of the notice by the drawer
expires. The period of 15 days in the present case expired on 14-10-1995. So cause of
action for filing complaint would arise from 15-10-1995. That day (15th October) is to
be excluded for counting the period of one month. Complaint is filed on 15-11-1995.
The result would be that the complaint filed on 15th November is within time."

11. Considered the argument raised by counsel for the parties and perused
the record. The dispute in hand is that the applicant submitted the cheque
before the bank for encashment on 29.07.2017 and same was returned to
the opposite party no.2 on 11.08.2017. Thereafter, the complainant had to
send statutory notice under the provisions of 138 (b) N.I. Act within thirty
days to the applicant. The complainant had sent notice on 11.09.2017
after expiration of thirty days i.e. on 31st day. The dispute raised by
counsel for the applicant here is that the provisions of General Clauses
Act would not be applicable on the Negotiable Instruments Act.
Moreover, the provisions provided under Section 10 of the General
Clauses Act cannot be considered while calculating the period of thirty
days.

12. Section 9 of the General Clauses Act provides that "for the purpose of
excluding the first in a series of days or any other period of time, to use
the word “from”, and, for the purpose of including the last in a series of
days or any other period of time, to use the word “to” and Section 10
provides that for the computation of time on the last day, if the Court or
office is found to be closed on that day or the last day of the prescribed
period, the act or proceedings shall be considered as done or taken in due
time if it is taken on the next day afterwards on which the Court or office
is open.

13. In the present case, learned trial court has found that the last day of
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                                   9

the period of thirty days, which is statutory period for giving notice to
accused persons, falls on the day 10.09.2017 and it is admitted fact that
10.09.2017 was a Sunday. As per Section 10 of the General Clauses Act,
if the Court or office is closed on that day, the last day of the prescribed
period, the act or proceedings shall be considered as done or taken in due
time if it is taken on the next day afterwards on which the Court or office
is open, i.e. on the last day i.e. 30th day, last day of the required period
falls on Sunday, as such, next day i.e. 11.09.2017 notice was sent to the
applicant and the notice sent by the complainant shall be considered to be
in time.

14. The argument of counsel for the applicant that the General Clauses
Act would not be applicable in the N.I. Act, cannot be acceptable as
learned counsel herself has produced judgment in which the Hon. Apex
Court has considered the General Clauses Act to be very much applicable
to the provisions provided under the N.I. Act. In the present case, it is
apparent from the facts of the case that last day falls on Sunday for
issuing notice to the applicant and the notice has been served to applicant
in writing which is also apparent from the notice annexed with the record.
The notice sent on 31st day, one day after 30th day of prescribed time,
which happens to be a holiday, shall be considered in time. The judgment
passed by the court concerned dated 29.01.2026 is based upon facts and
provisions argued before the court and the court concerned has found that
notice has been sent on 31st day but 30th day was holiday i.e. Sunday and
notice was issued on 31st day in view of provisions provided under
section 10 of the General Clauses Act, would be considered valid and in
time. Moreover, the argument raised by counsel for the applicant that the
provisions of Section 10 of General Clauses Act is not applicable to N.I.
Act cannot be accepted as the provisions of Section 10 (2) of General
Clauses Act specifically provides applicability of the provision of General
Clauses Act.

15. The argument raised by counsel for the applicant in regard to non
applicability of provisions of Section 10 (1) General Clauses Act is not
tenable in the eye of law as definition clause 3 (7) defines the Central Act
which is quoted below:

(7) “Central Act” shall means an Act of Parliament, and shall include
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                                    (a)an Act of the Dominion Legislature or of the Indian Legislature passed before the
                                    commencement of the Constitution, and

                                    (b)an Act made before such commencement by the Governor-General in Council or
                                    the Governor-General, acting in a legislative capacity;

                                    16. In view of that the General Clauses Act is very much applicable in the
                                    present case.

                                    17. The order dated 29.01.2026 passed by the Presiding Officer,
                                    Additional Court, 138 N.I. Act, Muzaffar Nagar, is just and proper and
                                    does not require any interference.

                                    18. The application is, accordingly, dismissed.



                                                                                                 (Deepak Verma,J.)
                                    April 9, 2026
                                    Meenu Singh




Digitally signed by :-
MEENU SINGH
High Court of Judicature at Allahabad