AXIS BANK LTD Vs. SABAR CONDUCTORS PVT LTD

JUDGEMENT

(1.) THIS is an application for grant of leave to file appeal. The accused have been acquitted for an offence under Section 138 of the Negotiable Instruments Act. In the present case, it is seen that the cheque in question was presented on 10.8.2005. It was received by the bank of the accused on 18.8.2005. On 5.9.2005 the applicant-bank made enquiry about the status of the cheque and by way of reply on 13.9.2005 the said Bank of India which was the bank of the accused informed the applicant bank that the party had stopped payment of the cheque and therefore, the said cheque was returned unpaid. Since the cheque was not actually received, applicant bank instead of giving notice, entered into correspondence issued reminder letter dated 9.1.2005 and ultimately unpaid cheque was returned on 14.11.2005. Considering these facts, the trial court held that the notice was not given within a period of 30 days from 13.9.2005. Such notice was ultimately given on 19.11.2005. It is seen that the notice U/s.138(b) is to be given within 30 days from the receipt of the information by the complainant from the bank regarding return of the cheque as unpaid. This requirement was fulfilled by the letter of Bank of India dated 13.5.2005. It is not necessary to wait for the physical return of the cheque and that is not the requirement under Section 138 of the N.I. Act. In the circumstances, the view taken by the trial court is possible view. Hence, leave refused. Consequently the appeal papers to be filed.