IMPORTANT POINT
Cognizance cannot be taken of a complaint based on time-barred notice.Judgment

K.N. Keshavanarayana, J.—This appeal under Section 378 of Cr.P.C. by the complainant is directed against the judgment and other dated 6.1.2007 passed by the Presiding Officer, Fast Track Court-V, Mysore, in Criminal Appeal 211/2005 acquitting the respondent/accused by setting aside the judgment and order of conviction passed by the Additional Civil Judge (Jr. Dn.) JMFC Nanjangud, in CC No.371 of 2003 convicting the respondent/accused for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘Act’’.

2. The appellant filed a private complaint under Section 200, Cr.P.C. against the respondent for offence punishable under Section 138 of the Act inter alia alleging that the respondent/accused borrowed a sum of Rs.2,50,000 from her on 14.8.2000 agreeing to repay the same with interest at 12% p.a. However, subsequently, the accused failed to pay the amount in spite of repeated demands by her and ultimately, the accused issued a cheque dated 30.7.2002 for Rs.3,00,000 drawn on Syndicate Bank, Kuvenmpunagar Branch, Mysore, in favour of the complainant towards repayment of the said debt and when the said cheque was presented for encashment, the same was returned unpaid with the Banker’s endorsement date 9.1.2003, “Insufficient Funds” and the said endorsement was received by the complainant from her Banker on 13.1.2003. Thereafter, she issued a legal notice as required by law on 8.2.2003 informing the accused about dishonouring of the cheque and also calling upon her to pay the amount covered under the cheque within the statutory period. However, the accused in spite of service of notice failed to pay the amount as such she has committed offence punishable under Section 138 of the Act.

3. The learned Magistrate, who took cognizance of the offence alleged, after recording the sworn statement of the complainant, issued summons to the accused. Upon service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against her and claimed to be tried.

4. During the trial, the complainant examined herself as PW1 and got marked Exs. P1 to P11. During her examination under Section 313, Cr.P.C. the accused denied all the incriminating circumstances appearing against her in the evidence of the complainant. In defence, the husband of the accused was examined as DW2 and two more witnesses were examined as DW1 and DW3 and Exs. D1 to D23 were marked. The defence of the accused was one of denial. It was her defence that, there was some transactions between her and the brother of the complainant and in connection with the said transaction the cheque in question had been delivered as a blank cheque to the brother of the complainant and the same has been misused by the complainant by filling up the blanks. It was also her defence that there was no monetary transaction between her and the complainant and the cheque in question was not issued for discharge of any debt or liability due to the complainant. It was also her defence that the notice dated 8.2.2003 was barred by time provided by Clause (b) of Proviso to Section 138 of the Act, therefore, there was no cause of action for the complainant to file complaint alleging offence under Section 138 of the Act and the Court could not have taken cognizance of the offence on the complaint filed on the basis of such a notice issued beyond the period of time allowed under law.

5. The learned Magistrate after hearing both sides and on assessment of oral and documentary evidence, by the judgment dated 11.8.2005 convicted the accused for offence under’ Section 138 of the Act and sentenced her to undergo S.I. for 2 years and also to pay compensation of Rs.4,00,000. Being aggrieved by the said judgment and order of conviction, the accused filed appeal before the Sessions Court at Mysore in criminal appeal No. 211/2005. The said appeal was subsequently made over to the Presiding Officer, Fast Track Court-V, Mysor