ANTONY C L Vs. K A ANTO

JUDGEMENT

(1.) Appellant is the complainant in C.C.No. 554/2002 on the file of the Judicial Magistrate of the First Class-II, Thrissur. He prosecuted the first respondent alleging offence under Section 138 of the Negotiable Instruments Act (N.I. Act) with a plea that the first respondent owed a sum of Rs. 5,35,000/- and in discharge of the said liability, Ext. P1 cheque dated 12.5.1998 drawn on Canara Bank, Puthanchanda, Trivandrum branch was issued and that when sent for collection through the State Bank of India, Thrissur branch, Ext. P1 was returned dishonoured for insufficient funds along with Ext. P2 memo issued from the drawee bank and Ext. P3 intimation issued from the payee's bank. Exts. P2 and P3 are dated 14.8.1998 and 21.8.1998 respectively. The appellant pleaded that he got Exts. P2 and P3 on 9.9.1998 and issued a notice on 14.9.1998, a copy of which was marked as Ext. P5, demanding discharge of the liability. Though the first respondent acknowledged the notice on 16.9.1998 the liability was not discharged, but a reply was caused. The first respondent, in response to the process served, entered appearance and pleaded not guilty when the particulars of the offence were read over and explained. Therefore, he was sent for trial. On the side of the prosecution, the appellant was examined as PW1. Exts. P1 to P8 were marked. After closing the evidence for the appellant, the 1st respondent was questioned under Section 313 (1)(b) of the Code of Criminal Procedure. He denied the incriminating evidence and contended that he was falsely implicated. On his side, Dws 1 to 6 were examined and Exts. D1 to D4 were marked.

(2.) The learned Magistrate, on appraisal of the evidence on record, arrived at a finding in favour of the appellant that Ext. P1 was issued in discharge of the liability, when presented for collection it was returned dishonoured and despite the acceptance of notice demanding discharge, the liability was not discharged. But it further found that since Ext. P2 memo is dated 14.8.1998, the notice caused on 14.9.1998 is beyond the time prescribed under proviso (b) to Section 138 of the N.I. Act. Consequently the 1st respondent was acquitted. Now this appeal.

(3.) According to the learned counsel for the appellant, notice of dishonour has to be counted from the date of communication i.e., on 9.9.1998 when the appellant was informed by his Bank, and since the notice demanding discharge was caused on 14.9.1998, the notice is within time. On the other hand, the contention of the 1st respondent is that payee's bank is an agent of the payee and the intimation of the dishonour of cheque to the payee's bank is to be treated as an intimation to the payee and the period of limitation for sending notice is to be counted from the date of intimation to the payee's bank and that the delay in communication between payee's bank and payee can no way be excluded and if calculated so, Ext. P5 notice demanding discharge is beyond the period of limitation. Therefore, the questions that arise in this appeal is: