SHYAMLAL JAIN Vs. EVALCHAND JAIN

JUDGEMENT

(1.) This is the complainant's appeal against acquittal of the accused/1st respondent recorded by the X Additional Chief Metropolitan Magistrate, Secunderabad in C.C. No. 439 of 2005 by judgment dated 10.02.2009. The complainant/appellant filed complaint in the lower court against the accused alleging offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). Most of the facts in this appeal are not in dispute. The only ground on which the lower court acquitted the accused is that the complaint was premature.

(2.) Thus, the only point which arises for determination in this appeal is:

(3.) The accused gave Ex.P-3 cheque dated 11.04.2005 to the complainant for Rs. 15,00,000/-. It is stated to be a post-dated cheque issued by the accused after borrowing Rs. 15,00,000/- from the complainant under Ex.P-1 promissory note and Ex.P-2 undertaking letter and receipt-cum-acknowledgement. When the complainant presented the cheque for encashment after the date mentioned on it, it was dishonoured by banker of the accused on the ground of closure of account. Ex.P-4 is cheque return memo dated 15.04.2005 of the banker. Thereupon, the complainant got issued Ex.P-5 statutory notice dated 17.04.2005 to the accused by registered post. Ex.P-7 is postal receipt therefore and it reveals that the notice was registered on 19.04.2005. Ex.P-8 is certificate of posting to the effect that the letter was posted to the accused on 19.04.2005. Ex.P-6 is reply notice dated 04.05.2005 got issued by the accused to the complainant. On Ex.P-9 postal acknowledgement of the accused, date of receipt of the notice by the accused is not clear. In para-4 of the complaint, the complainant stated that the accused received the said legal notice on 20.04.2005 and that the accused did not repay the amount. The complaint was filed in the lower court on 06.05.2005 and sworn statement of the complainant was recorded by the lower court on the same date and cognizance of the offence was taken by the lower court on the same date. In para-4 of the complaint, there is correction in date of receipt of notice by the accused and in the list of documents appended to the complaint also, there is correction in date of portal acknowledgement. Though the notice Ex.P-5 is dated 17.04.2005, there is no dispute that it was dispatched to the accused by registered post and by certificate of posting on 19.04.2005. Ex.P-7 postal receipt shows that a registered letter was received in the post office at 1.30 p.m., or 13.30 hours on 19.04.2005. In the date stamp on Ex.P-9 postal acknowledgement, out of two digits in the date portion, only the first digit '2' is visible and the second digit is not visible. According to the 1st respondent/accused, Ex.P-9 postal acknowledgement is dated 22.04.2005. As per the original office note put up by the staff of the lower Court on the complaint before the then Presiding Officer of the lower court, the date of receipt of notice by the accused was 22.04.2005. It shows that after the said office note and after the lower court took cognizance of the offence and issued summons to the accused, there are unauthorised corrections in para-4 of the complaint as well as striking of date pertaining to the postal acknowledgement in the list of documents appended to the complaint. The office note was put up in the lower court on the basis of original complaint which was not interpolated. Therefore, the lower court rightly came to the conclusion that Ex.P-5 notice was served on the accused as per Ex.P-9 postal acknowledgement on 22.04.2005. If 15 days period allowed to the accused for payment under Section 138(c) of the Act are computed from 22.04.2005, then it follows that the complaint was presented on 14th day after issue of notice and the lower court took cognizance of the offence on 14th day after service of Ex.P-5 notice on the accused. In that view of the matter, the lower court came to the conclusion that the complaint was premature and that taking cognizance of the offence was also premature.