Point of law:Delay in filing complaint – Notice - When there is a delay in filing the complaint, necessarily the complainant will file an application for condonation of delay. When such application is filed, notice obviously will have to be issued to the other side before the order is passed either allowing the application or declining the same. Since no notice was issued on the application filed under Section 142B read with Section 5 of Limitation Act, the accused had no opportunity to raise objections regarding limitation

ORDER :

Heard learned counsel appearing for both the parties.

2. The petitioner was the accused in criminal case No.433/2013 on the file of Senior Civil Judge and JMFC, Channapatna, initiated by the respondent-complainant herein for the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the Act’).

3. The case of the respondent-complainant is that he, being the President of SDM Committee in the School, had advanced hand loan of Rs.2,50,000/-to the petitioner-accused on 12.03.2009 for the purpose of repayment of loan already incurred by the petitioner-accused. The accused had promised to repay the loan amount on or before 31.08.2009 and had issued post dated cheque bearing No.101860 drawn on State Bank of Mysore, Channapatna Branch, dated 31.08.2009 in favour of the respondent-complainant. When the said cheque was presented for collection, it was returned with an endorsement dated 12.09.2009 by Cauvery Kalpatharu Grameena Bank as ‘insufficient funds’. Therefore, the respondent-complainant issued legal notice through his counsel to the revision petitioner-accused on 16.09.2009. On service of said notice, the accused has given untenable reply and has failed to pay the cheque amount thereby, the accused has committed the offence punishable under Section 138 of the Act.

4. In view of delay of 15 days in filing the complaint, the respondent-complainant had filed an application under Section 142B of the Act for condonation of delay in filing the complaint, but the trial Court did not consider the said application and proceeded to take cognizance and issue process.

5. The accused appeared before the trial Court and pleaded not guilty for the charges leveled against him for the offence punishable under Section 138 of the Act.

6. The trial Court, on analysis of the evidence adduced by respective parties, arrived at a factual finding that the petitioner-accused had duly issued the cheque in question for a sum of Rs.2,50,000/-for repayment of loan availed from the respondent-complainant, the cheque was presented to the bank for payment within the period of its validity, but the said cheque had been returned unpaid for want of funds in the bank account of petitioner-accused on which the cheque was drawn. The statutory notice of dishonour was duly issued for which the petitioner-accused has given untenable reply.

Further it is held that in view of the presumption available under Section 139 of the Act and since the accused has not rebutted the presumption available under Section 139 of the Act and has not questioned the financial capacity of the respondent-complainant to advance the loan of Rs.2,50,000/-, the existence of the legally repayable debt proved, and the petitioner-accused has failed to repay the debt. Thereby, he has committed the offence punishable under Section 138 of the Act.

7. The first appellate Court affirmed the factual findings of the trial Court and has held that the cheque produced by the respondent-complainant admittedly belongs to the petitioner-accused and there is no denial of the signature found therein. The initial burden has been discharged by the respondent-complainant, as such, the presumption under Sections 118 and 139 of the Act comes into operation, but the petitioner-accused has failed to probablise his defence. With the said reasoning, the first appellate Court has dismissed the appeal filed by the revision petitioner-accused.

8. The trial Court and the first appellate Court have arrived at the specific concurrent factual finding that the cheque had admittedly been signed by the petitioner-accused and both the Courts below have rejected the plea of the petitioner-accused that the respondent-complainant had no financial capacity to lend the loan. Being aggrieved by the concurrent findings of the Courts below, the petitioner-accused has preferred this revision petition.

9. Learned counsel for the revision petitioner-accused would contend that the matter has to be remanded back to the trial