ORDER :

The revision petitioner has assailed the impugned judgment of conviction and order of sentence dated 04.12.2012 passed in CC No.651 of 2010 on the file of the learned Civil Judge and JMFC, Molakalmuru, (for short ‘the Trial Court’), which was confirmed vide judgment dated 07.02.2015 passed in Crl.A.No.2 of 2013 before the learned Additional District and Sessions Judge, Chitradurga, (for short ‘the Appellate Court’) and the petitioner herein was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘NI Act’) and he was sentenced to pay a fine of Rs.3,10,000/-and in default to pay fine, to undergo simple imprisonment for a period of six months.

2. Brief facts of the case are that, the respondent herein as complainant contended that he had paid hand loan of Rs.3,00,000/-to the accused during the last week of January, 2010 and towards repayment of the said loan amount, the accused has issued Ex.P1 – cheque on 22.03.2010 for Rs.3,00,000/-. The said cheque was presented for encashment by the complainant through his banker, but the cheque was dishonored as there was ‘insufficient funds’. The same was communicated to the complainant vide memorandum dated 26.04.2020 which is as per Ex.P3. The legal notice was issued to the accused informing him regarding the dishonor of the cheque and called upon him to repay the cheque amount. The said notice sent through RPAD was returned as the addressee was absent. Since the accused has not repaid the cheque amount, the complainant presented the complaint before the Trial Court alleging commission of offence punishable under Section 138 of the NI Act.

3. The accused appeared before the Trial Court and pleaded not guilty for the charges leveled against him. The complainant examined himself as PW1 and examined PW2 and got marked Exs.P1 to P9 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. , but has not chosen to lead any evidence in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused for the offence punishable under Section 138 of the NI Act and the accused has not rebutted the presumption under Section 139 of the NI Act and proceeded to convict him as stated above. The accused has challenged the impugned judgment of conviction and order of sentence by preferring Criminal Appeal No.2 of 2013 before the Appellate Court, which was dismissed vide judgment dated 07.02.2015.

4. Heard Sri.P.B.Umesh, learned Counsel appearing for Sri.R.B.Deshpande, for the revision petitioner and Sri.R.M.Ramakrishna, learned Counsel for the respondent. Perused the materials including the Trial Court records.

5. Learned Counsel for the revision petitioner submitted that the Trial Court should not have taken cognizance of the matter since there was delay in issuing legal notice. Firstly, he contended that even though the dishonor of cheque was intimated to the complainant vide endorsement dated 25.03.2010 as per Ex.P2, the legal notice was issued on 10.05.2010 which is beyond the period of limitation. Secondly, he contended that the legal notice was never served on the accused. Thirdly, he contended that complainant has not proved his financial capacity to lend the amount. Therefore, on all these counts, the learned Counsel prays to set aside the impugned judgment of conviction and order of sentence passed by the Trial Court which was confirmed by the Appellate Court.

6. Per contra, learned Counsel for the respondent supporting the impugned judgment of conviction and order of sentence passed by the Trial Court and confirmed by the Appellate Court submitted that, the fact of dishonor of cheque was intimated to the complainant only on 26.04.2010 vide Ex.P3. Therefore, within the statutory period of 30 days, legal notice was