IMPORTANT POINT
Court has to analyse entire circumstances of case in order to ascertain, whether any deliberate inaction on part of complainant in issuing second notice.

K.N. Phaneendra, J.—The appellant being aggrieved by the judgment of acquittal dated 21.03.2009 passed by the JMFC (II Court), Karwar in C.C.No.934/2006, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N. I. Act’, for short) preferred this appeal.

2. The short question involved in this particular case is;

“Whether a person, who has issued a legal notice under Section 138(b) of the N.I. Act fails to take steps to file the complaint within a period of one month after the grace period given from the date of issuance of notice and due service of notice on the accused, is entitled to file the complaint on the basis of the subsequent notice issued by him.”

3. Before answering the above said question, several factual matrix of this case are very much relevant.

The appellant herein - Roshan filed a complaint against the respondent/accused - Ramesh Vithal Shet under Section 200 of Cr.P.C. alleging offence under Section 138 of the N.I. Act. It is the specific case of the complainant, that the accused has issued a cheque for Rs.2,30,000/- on 21.04.2006, drawn on Vijaya Bank, Karwar. On 17.05.2006, the said cheque was presented for collection through ING Vysya Bank. The same was returned with an endorsement “funds insufficient” in the account of the accused on 25.04.2006 along with a memo dated 25.04.2006. Thereafter, the complainant has issued a legal notice on 26.05.2006 and the same was returned with shara “not known - No addressee - returned to sender”. In fact, after fifteen days of the issuance of the said notice, i.e., after the grace period of one month, the complainant ought to have filed the complaint. But the complainant has again issued one more notice dated 20.06.2006, which was dispatched on 23.06.2006 and the same was served on the accused on 26.06.2006. Thereafter, the complainant waited for fifteen days, and when the accused had not replied to the notice nor paid the amount, the complainant chose to file the complaint on 08.08.2006.

The learned Magistrate took cognizance of the offence, issued process against the accused and proceeded with the trial. The learned Magistrate recorded the evidence of the complainant and also of two witnesses PWs. 2 and 3. The complainant got marked eight documents at Exs. P1 to P8. The accused was examined under Section 313 of Cr.P.C. After hearing the arguments, the impugned judgment was passed by the learned Magistrate.

4. As could be seen from the judgment, the learned Magistrate, in fact, has not appreciated the evidence of PWs. 1 to 3 or the materials on record in order to pass the order on merits of the case though in one sentence the learned JMFC has stated in his judgment that; “an offence under Section 138 of the N.I. Act being a technical one, complainant has to prove his case beyond all reasonable doubts but, he has miserably failed to bring home the guilt of the accused for the alleged offence. In view of the present legal position, no presumption can be drawn in favour of the complainant. Accordingly, the evidence of PWs. 1 to 3 are not of trustworthy and there is no material on record so as to bring home the guilt of the accused for the alleged offence.”

5. On merits, saying the above said words, the learned Magistrate has acquitted the accused only on the ground that the complaint was barred by time and there was no cause of action to file the complaint because, after first notice was issued and grace period was granted to the accused, the complainant has not filed the complaint before the Court within one month.

6. The learned Counsel for the appellant strenuously contended that the learned Magistrate ought to have dismissed the complaint at the time of taking cognizance itself. When once the cognizance is taken, it is deemed that the delay, if any, in filing the complaint has been condoned by the learned Magistrate. Secondly, the learned Counsel contended that, when the second notice was issued, the Cour