JUDGMENT :

S.M Modak, J.

As we know there are various stages involved in filing of the complaint for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (in short referred as "N.I.Act). Different time limit is prescribed for these stages. Section 138 of N.I.Act is bifurcated into two parts. One is 'part excluding three proviso' and second is 'part comprising three provisos'.

2. There are two views prevailing about interpretation of Section 138 of Negotiable Instruments Act. One view is that moment cheque is dishonoured, it is said that offence is complete and compliance of the procedure laid down in three provisos only postpones filing of complaint. Another view is that offence is complete only when there is a compliance of the procedure laid down in three proviso preceded by dishonour of cheque.

CONTROVERSY

3. The first stage deals with issuance of notice to the drawer. Proviso (b) deals with that it has to be issued within 15 days (it was there till 2002 and which is extended to 30 days). The period is to be computed from "the date of receipt of information by the drawer from the bank". In the case before me the controversy has arisen in between the parties which is the correct date of getting a knowledge of dishonour by the complainant. On one hand the complainant contended that he got knowledge on 23rd May, 1997. Whereas on the basis of available evidence, the accused contended that it is not on 23rd May, 1997 but it is on 21st May, 1997 the complainant was informed about the dishonour by his banker.

4. The Court of Judicial Magistrate First Class, Katol recorded the evidence of complainant and two bank witnesses. The trial Court had shown disfavour to the complainant and held that "complainant got knowledge on 21st May, 1997" and accordingly "the notice dated 6th June, 1997 was held to be given after the expiry of 15 days and as such the mandatory requirement of clause (b) was not fulfilled" and accordingly, the accused was acquitted. Hence, the complainant is before this Court by way of an appeal.

5. Apart from the issue of compliance, the learned trial Judge framed points on other issues also. The points and findings are as below:-

Sr. No. Points Findings

1. About Directorship of accused nos. 3, 4, 7 and 8 ? .. In the affirmative.

2. About accused nos. 3, 4, 7 & 8 being in-charge of the affairs of accused no. 1 Company .. Only involvement of accused nos. 3 and 4 is proved

3. Issuance of 10 cheques towards discharge of debt. .. In the affirmative.

4. Presentation of cheques within validity and their dishonour due to insufficient funds .. In the affirmative.

5. Issuance of notice within 15 days from the date of knowledge of dishonoured ... Not within 15 days.

6. Proof of commission offence by accused nos. 1, 3, 4, 7 & 8. In the negative.

SCOPE OF THIS APPEAL

6. As stated above, the trial Court only gave a finding in respect of "Timely issuance of notice" against the appellant. Initially, there were eight accused persons. One is company and 2 to 8 are the Directors. Trial Court dropped the proceedings against the accused nos. 2, 5 & 6. So trial proceeded only against rest of the accused i.e. accused nos. 1, 3, 4, 7 and 8. After evidence, trial Court concluded only about involvement of accused nos. 3 and 4 in the affairs of the accused no.1 company. The trial Court gave a benefit to two of the Directors i.e accused No. 7 and 8. This finding is not challenged on behalf of the complainant as submitted by the learned advocate Shri Hussain for the appellant during the oral argument. He fairly conceded that the involvement of accused no.7 and 8 in the affairs of the company could not be proved by the complainant. Hence there is no occasion for this Court to ascertain the correctness of that findings.

7. For rest of the issue trial Court finds favour with the appellant. On behalf of the respondent, there is no challenge during arguments to the findings on those issue. Rest of the issues were answered a