JUDGMENT :

1. Though the small but technical issue has arisen in this appeal and it has become more interesting in view of the detail and thorough arguments advanced by learned Advocate Dr. Warunjikar for the Appellant-Complainant and learned Advocate Ms. Bhakti A. Gadamagaonkar for the Respondent No. 1-accused.

2. Learned Advocate Dr. Warunjikar with all his experience and articulation tried to convince me that statutory notice prior to lodging of prosecution under Section 138 of the Negotiable Instruments Act was given in time. Even on some occasion his colleagues Mr. Aditya Kharkar, Mr. Siddhesh Pilankar also tried their level best to convince me. However to the misfortune of the Appellant, their arguments though attractive have not convinced my conscious. Hence I have no alternative but to dismiss the appeal.

3. The Court of the JMFC Court No. 9, Pune as per judgment dated 27/01/1999 was pleased to acquit the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial court framed only one composite point whereby he included all the ingredients of offence under Section 138 of the Negotiable Instruments Act. As everyone knows the issue about existence of legally recoverable debt or liability, reason for dishonour, issuing statutory notice in time and filing the complaint in time are the necessary ingredients.

4. With the assistance of both the sides, when I have read the judgment, learned Magistrate has acquitted the Respondent No. 1 mainly for the reason that the mandatory notice was not issued in time and that is why there is a non-compliance. So if those findings are set aside, then the question will crop up whether other ingredients are proved or not. As I have said in the beginning there is no merit in the appeal, I have not gone into correctness of the findings on the other issue.

5. So the issue involved in this appeal is “whether trial magistrate was correct in observing that statutory notice was not given in time from the date of information as to dishonour?”

6. There are few dates which are relevant. That is to say date of deposit of cheque and date of returning the cheque/date of cheque return memo. During oral and documentary evidence following dates are relevant :-

7. So the issue is whether the documentary evidence can be considered to presume those dates mentioned therein (without there being foundation in the avernments in the complaint/evidence of the Complainant) According to learned Advocate Dr. Warunjikar the period of 15 days prescribed as per proviso (b) to Section 138 of the Negotiable Instruments Act will start from receipt of the written information from the bank by the payee entry in account extract. For ascertaining the correctness of the findings, certain facts need to be stated. They are as follows :-

Evidence of Complainant

a) The complainant is a tenant in respect of the shop which is owned by the father of the accused.

b) The complainant advanced Rs. 39,500/- by way of hand loan to the accused.

c) It is for the purpose of marriage of brother of accused and for incurring medical expenses of the mother of the accused. (Though this is not stated in the complaint and it is admitted by the Complainant during cross-examination and also observed by the trial court)

d) The accused issued a cheque for Rs. 39500/- in favour of the Complainant. It was drawn on Cosmos Co-operative Bank, Aundh Branch dated 06/11/1994 (Exh. 24).

e) It was bearer cheque (this assumes significance).

f) The complainant was also having account in the same branch. He d