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2005(2) Bankmann 24
ANDHRA PRADESH HIGH COURT
P.S. Narayana, J.
J. Parameswarudu — Appellant
versus
K. Krishna and another — Respondents
Criminal Appeal No. 1601 of 1999
Decided on 17.11.2004.
Counsel for the Parties:
For the appellant:Mr. B. Narasimha Sarma, Advocate.
For the Respondent No. 1:Mr. K. Ratangapani Reddy, Advocate.
For the Respondent No. 2: Additional Public Prosecutor.
IMPORTANT POINT
Complainant has to prove that he issued demand notice within period of limitation.
Headnote:(a) Negotiable Instruments Act, 1881—Section 138—Complaint—Limitation for filing—Cheques dishonoured on 26-8-1998—Accused in his reply dated 15-9-1998 explained his difficulties for not providing funds in time—Presumption that notice served prior to 15-9-1998—Complaint filed on 30-10-1998 barred by limitation of 15 days.
Held: The reckoning of period of 45 days and bar of limitation had been raised during the course of arguments before the learned Magistrate and hence an application under Section 311 of the Code of Criminal Procedure was filed to prove the same and the said application was dismissed on the ground that the prosecution would not be permitted to fill up such lacunae at such a belated stage. The learned Magistrate recorded reasons in detail at para 8 and also had arrived at a conclusion that the postal acknowledgment was not filed and when the Act specifically provided specific period of limitation, the burden is on the complainant to prove that the complaint filed by him is within the time. No doubt, the accused in his reply Ex. P. 11 mentioned that in his letter dated 15.9.1998 he explained his difficulties for not providing funds in time and if the date of receipt of notice is taken as 15.9.1998 the complaint filed on 30.10.1998 can be said to be within time. But had the notice been received by the accused prior to 15.9.1998, the filing of complaint was barred by time. Though the complainant could not get the acknowledgment, he could have obtained endorsement from the postal authorities to show that the accused received notice on 15.9.1998 and had he done so and produced the evidence, the complaint would have been within time, since the complaint was filed on the last date of limitation and if the notice had been received by the accused prior to 15.9.1998, the complaint was barred by limitation since it was filed beyond 45 days. (Para 8)
(b) Negotiable Instruments Act, 1881—Section 138—Appeal against acquittal—Letter from accused cannot be said to be an admission of receipt of notice—Magistrate arrived at conclusion that accused was entitled to acquittal.
Held: On a careful scrutiny of contents of Ex. P. 11 it cannot be said that there is any admission relating to the receipt of notice on 15.9.1998 in Ex. P. 11 letter. In view of the same the learned Magistrate had arrived at a conclusion that R. 1 accused is entitled for an acquittal. This reasoning of the learned Magistrate cannot be said to be unreasonable and inasmuch as this is an appeal against an order of acquittal recorded by the learned Magistrate, unless the findings recorded are perverse or on misappreciation of evidence, the appellate Court normally will not interfere or disturb the findings of the trial Court. Hence, the findings of the learned Magistrate are hereby confirmed. (Para 9)
(c) Negotiable Instruments Act, 1881—Section 138—Burden to prove—Burden is on complainant to prove that complaint filed by him is within time. (Para 8)
Result: Appeal dismissed.
P.S. Narayana, J.—Heard Sri Rajesh, representing Sri B. Narasimha Sarma, representing appellant complainant and Sri K. Rathangapani Reddy, representing R 1 accused and also learned Additional Public Prosecutor.
2. The question, which was argued in elaboration by the counsel on record is whether the complaint is barred by limitation having been filed beyond the specified period of 45 days or not.
3. Counsel for the appellant would contend that the accused in his reply Ex. P 11 specifically stated that in his letter dated 15.9.1998 he explained his difficulties for not providing funds in time. The counsel would contend that this is a date from which the period of 45 days may have to be reckoned for the purpose of computing the limitation for filing the complaint.
4. On the contrary Sri K. Rathangapani Reddy, learned counsel representing R 1 accused had taken this Court through the contents of Ex. P. 11 and would submit that as per the tenor of the letter dated 15.9.1998 the date of receipt of notice could have been only prior thereto and hence the same is barred by limitation. The learned counsel also would submit that findings in detail had been recorded in this regard and hence the said findings need not be disturbed.
5. Heard both the counsel.
6. The appellant complainant filed the complaint under Section 138 of Negotiable Instruments Act, 1881 (in short hereinafter referred to as the Act for the purpose of convenience). It is the case of the appellant complainant that the accused purchased Tobacco from the complainant on different dates and in that transaction he has to pay a total amount of Rs. 1,35,800 and for that, accused issued four different post dated cheques each for the amount of Rs. 33,950 with dates 27-2-1998, 23-3-1998, 27-4-1998 and 27-5-1998 respectively. Later, he presented the cheques for enacshment into Andhra Bank, Budhawarpeta on 5.8.1998. The appellant complainant was informed by his banker on 26.8.1998 that the cheques issued by R 1 accused were dishonoured by the banker of the accused i.e., Indian Overseas Bank, Washer-menpet, Madras on the ground that there was no sufficient funds in the account of R.1 accused. Later, the appellant complainant informed R 1 accused over phone about the bouncing of cheques issued by him. Ultimately, appellant-complainant issued a registered notice dated 9.9.1998 intimating R. 1 accused about the dishonouring of the cheques and demanding to pay the cheque amount with interest. It is stated in the complaint that the said notice was served on R. 1 accused who had given a reply notice accepting the fact of dishonouring of cheques and after issuance of notice, the accused also sent a demand draft for Rs. 5,000 drawn on Andhra Bank, Washermenpet,. Madras dated 15.9.1998. Except the aforesaid amount, the accused had not paid the amount covered by the bounced cheques. It was further stated that it was presumed that the notice was served on 15.9.1998, since the acknowledgment was not received and later after waiting for 15 days, the complaint was filed and hence the said complaint is within limitation.
7. P.Ws. 1 and 2 were examined and Exs. P. 1 to P 11 were marked.
8. The reckoning of period of 45 days and bar of limitation had been raised during the course of arguments before the learned Magistrate and hence an application under Section 311 of the Code of Criminal Procedure was filed to prove the same and the said application was dismissed on the ground that the prosecution would not be permitted to fill up such lacunae at such a belated stage. The learned Magistrate recorded reasons in detail at para 8 and also had arrived at a conclusion that the postal acknowledgment was not filed and when the Act specifically provided specific period of limitation, the burden is on the complainant to prove that the complaint filed by him is within the time. No doubt, the accused in his reply Ex. P. 11 mentioned that in his letter dated 15.9.1998 he explained his difficulties for not pro
