IMPORTANT POINT
Notice must be sent within stipulated period of fifteen days.

R.S. Chauhan, J.—The complainant is aggrieved by the judgment dated 19.1.2009 passed by the Additional Chief Judicial Magistrate, No.3 Bikaner, whereby the learned Magistrate has acquitted the accused respondent, Vijay Kumar for offences under Section 138 Negotiable Instrument Act read with Section 420 IPC.

2. Briefly the facts of the case are that according to the complainant, Aditya Ram Sharma as part of his post retrial benefits, he had received about Rs. 2,25,000/-. Since Vijay Kumar was known to him, Vijay Kumar sought a loan for his construction business. He had given him a loan of about Rs.1,00,000/-. In order to repay the said loan, Vijay Kumar had issued a cheque, cheque No. FC-617637 dated 21.12.1995. On 22.12.1995, when the complainant submitted the cheque for encashment, he was informed that the cheque could not be honoured as Vijay Kumar had closed the account. Therefore, 9.1.1996, the complainant had a legal notice sent to Vijay Kumar. However, despite having received the said notice Vijay Kumar did not repay the said loan. Therefore, the complainant filed the complaint under Section 138 of the Act read with Section 420 IPC.

3. In order to buttress his case, the complainant examined himself as witness, and submitted five documents. In turn, the defence examined a single witness, but did not submit any document. After going through the oral and documentary evidence, vide judgment dated 19.1.2009 the learned Magistrate acquitted Vijay Kumar of the aforementioned offences. Hence, this criminal leave to appeal before this Court.

4. Mr. M.K. Garg, the learned counsel for the appellant, has vehemently contended that the learned Magistrate has failed to appreciate the evidence in proper perspective. One of the grounds taken by the learned Magistrate is that the notice was not sent within the stipulated period of fifteen days. However, according to the appellant, he came to know about the dishonour of the cheque, five days after it was dishonoured by the bank. Thus, he came to know about the dishonour of the cheque on 27.12.1995. Therefore, the notice was well within the stipulated period of fifteen days.

5. On the other hand, Mr. Sikandar Khan, the learned counsel for the accused respondent, has contended that neither in his notice nor in his deposition before the court, did the complainant claim that “he came to know about the dishonour of the cheque on 27.12.1995.” Therefore, the stand taken by the accused appellant is misplaced. Since the cheque was dishonoured on 22.12.1995, since the notice was sent on 9.1.1996, obviously the notice was sent beyond the statutory period of fifteen days. Thus, the learned Magistrate was justified in dismissing the complaint.

6. Heard learned counsel for the appellant, and perused the impugned judgment.

7. Section 138 of the Negotiable Instrument Act is as under:

138. Dishonour of cheque for insufficiency, etc., of funds in the accounts —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for 2 [“a term which may be extended to two years”], or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) The payee or the holder induce course of