IMPORTANT POINT
Provision of Section 138(b) of the Act regarding giving notice to accused within 15 days is mandatory, non-compliance whereof would make the complaint liable to be dismissed.

JUDGMENT

K. Ramanna, J.—This apeal is filed by the unsuccessful complainant challenging the order of acquittal dated 4.3.2005 acquitting the respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, passed by the 16th Additional CMM Bangalore, in C.C. No. 2805 of 2003.

Brief facts of the case are that the appellant herein filed a private complaint under Section 138 of the Negotiable Instruments Act for dishonour of cheque Ex. P2, dated 10.12.2002 for Rs. 49,58,010 issued by the respondent accused in favour of the appellant. The cheque came to be presented on the very same day and it was dishonoured. Therefore, the appellant herein despatched the demand notice on 26.12.2002 but the same came to be unserved as ‘not claimed’. The notice sent under certificate of posting on 26.12.2002 is deemed to have served on the respondent personally at his residence. The respondent/accused though aware of the fact that his account in HSBC Limited, Manipal Centre, Dickensan Road, Bangalore, was closed on 6.11.2002 itself in spite of which, the respondent/accused issued a cheque and got it dishonoured and thereby committed an offence under Section 138 of the Negotiable Instruments Act, 1881. Since the respondent failed to pay the cheque amount inspite of service of notice, the appellant was constrained to file a criminal complaint for the said offence.

2. The Trial Court after recording the sworn statement of the appellant, issued summons to the respondent/accused. The respondent contested the matter and admitted the signatures on the cheque, letter etc., but the Trial Court without considering the case on merits, dismissed the complaint only on the ground of limitation, that the statutory notice was not issued within the period of limitation i.e., 15 days and therefore, acquitted the respondent. Aggrieved by the said order, the appellant has come up with this appeal praying to set aside the order passed by the Trial Court and to convict the respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. Learned counsel for the appellant contended that 15th day to issue demand notice fell on 25.12.2002, which is a public holiday and therefore, the notice came to be issued by R.P.A.D. on the next day i.e., 26.12.2002 being a working day. Therefore, the Trial Court committed an error in holding that the appellant has not sent notice within 15 days i.e., from the date of receipt of the intimation of dishonour of the cheque from the Bank. It is also submitted that the last date for sending the notice was a general holiday or public holiday and if the provisions of General Clauses Act, 1897 be made applicable the notice sent on the next working day be sufficient. Therefore, the Trial Court has not properly appreciated the evidence and has come to the wrong conclusion. Therefore, prays that the appeal be allowed by setting aside the order passed by the Trial Court.

4. On the other hand, learned counsel for the respondent submitted that the appellant sent the notice on 16th day but Section 138(b) of the Negotiable Instruments Act clearly indicate that the notice shall be sent to the respondent within 15 days and it can be sent not only by registered post but also through the courier or fax etc., but no such attempt has been made by the complainant. It is further argued that there is no law in the Negotiable Instruments Act that notice sent on the 16th day will be considered as valid if the previous day happens to be a general public holiday. Therefore, the Trial Court is right in dismissing the complaint and acquitting the respondent for the aforesaid offences. When there is a specific limitation or time limit for sending the notice within the stipulated time i.e., 15 days and if it is sent after that, then the appellant has to face the consequences. Therefore, the Trial Court is right in dismissing the complaint and the appeal is, therefore, not at all maintainable.

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