1. The complainant in C.C.No.480/2001 on the file of the Judicial First Class Magistrate Court, Varkala is the appellant. The complaint was filed against the first respondent herein complaining of commission of the offence punishable under Section 138 of the Negotiable Instruments Act by the respondent/accused. The learned Magistrate found that the period of limitation would start from the date of receipt of notice by the accused i.e. 05/09/2000 but the complaint was lodged on 27/11/2000 i.e. after the prescribed time limit as contemplated under Section 138 of N.I. Act. The learned Magistrate hence held that the complainant has failed to prove all the ingredients of S.138 of N.I. Act. On that finding, the learned Magistrate found the accused not guilty of the offence u/s. 138 of N.I. Act. She was acquitted of the said offence u/s.255(1) Cr.P.C. Hence, this appeal is preferred by the aggrieved complainant against acquittal of the accused.

2. The case of the complainant in brief is as follows:-

The accused borrowed an amount of Rs.96,000/- (Rupees Ninety six thousand only) from the complainant on 25/10/1997 at the house of the complainant on condition that it shall be returned within one year. When he demanded back the amount on 01/08/1998 the accused issued a cheque dated 29/08/2000 for Rs.1,50,000/- being the principal amount with its interest drawn on IOB, Varkala branch dated 29/08/2000. When the cheque was presented for collection at the bank, it was returned dishonoured on the reason “account closed”. When notice of demand was issued through lawyer to the accused, it was accepted by the accused. She failed to reply to the notice and to repay the amount. Hence, it was complained by the complainant/appellant that the accused has committed the offence under Section 138 of the Negotiable Instruments Act.

3. It is contended in this appeal that the lower court did not consider the evidence adduced by the appellant/complainant and acquitted the accused on the finding that the complaint has not been filed within the time limit as contemplated under Section 138 of the Negotiable Instruments Act. The learned counsel further argued that the word used in Section 138 (c) is receipt of the notice. According to the learned counsel, only in cases where a complainant is having specific knowledge about the date on which the notice was served, the period of one month for filing the complaint can be reckoned from the day immediately following the day on which the period of 15 days from the date of receipt of the notice by the drawer expires. In a case where the acknowledgment card had not received back and there is no material to show the service of notice to the drawer on a particular date, the date of knowledge of the complainant regarding receipt of notice by the drawer is to be taken as the date on which the payment period of 15 days as contemplated under proviso (c) of S.138 of the N.I. Act starts. Then only the cause of action arises and the complaint made within one month from that date is within time. According to the learned counsel only on 27/10/2000, the date on which complainant came to know through the postal authorities regarding receipt of statutory notice by the accused can be reckoned as the relevant date. The complaint was filed on 27/11/2000 i.e. within 45 days – Period of 15 days for payment and one month, thereafter. Hence the finding of the court below is illegal and the judgment of the lower court may be set aside, submitted the learned counsel for the appellant.

4. The contention of the appellant has been stoutly opposed by the learned counsel for the first respondent/accused. The learned counsel submitted that the cause of action arose on 05/09/2000, the date on which lawyer notice was actually served on the accused and therefore, there is no ground for any interference with the impugned judgment of acquittal passed by the learned Magistrate.

5. In the light of the contentions raised by the parties in this