Complainant in S. T. No. 1502/2000, on the file of the Judicial First Class Magistrate Court-II, Thrissur, is the appellant herein. The case was taken on file by the Magistrate on the basis of a private complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, (hereinafter called 'the Act’).

2. The case of the complainant in the complaint was that, the accused borrowed a sum of Rs. 55,000/- from the complainant and in discharge of that liability, he had issued Ext. P1 cheque drawn on District Co-operative Bank Ltd., Vadanappally Branch. The cheque when presented was dishonoured for the reason 'funds insufficient’ in the account of the accused vide Ext. P2 dishonour memo and this was intimated to the complainant by his banker vide Ext. P3 letter. The complainant issued Ext. P4 notice vide Ext. P5 postal receipt and the same was received by the accused evidenced by Ext. P6 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.

3. When the accused appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts. P1 to P6 were marked on his side. After closure of the complainant’s evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant’s evidence. He had further stated that, there was no transaction between the complainant and the accused and he was a subscriber of the chitty conducted by M/s. Lakshmi Chittis and Finances and when he bid the chitty, a blank signed cheque was given to them and the same was closed and misusing the cheque, the present complaint has been filed. In order to prove his case, the accused himself was examined as DW1 and Exts. D1 to D3 were marked on his side. After considering the evidence on record, the court below came to the conclusion that, notice was issued out of time and as such the complaint is not maintainable and the accused is entitled to get acquittal and acquitted him under Section 255(1) of the Code of Criminal Procedure. Aggrieved by the same, the present appeal has been preferred by the appellant /complainant along with Leave Petition Cri. L. P. No. 694/2005 and the application was allowed and the leave was granted and then the appeal was admitted.

4. Heard Sri. Dilip J. Akkara, counsel appearing for the appellant and Sri. N. Subra-manian, counsel appearing 1st for the respondent and Sri. Jibu P. Thomas, Public Prosecutor appearing for the 2nd respondent/State.

5. The counsel for the appellant submitted that, the court below was not justified in holding that the notice issued is not proper and in fact the intimation was dated 12.07.1999. Notice was issued on 27.07.1999 and if the date of receipt of the intimation is excluded, then the notice is within time. Sending notice on the last date of expiry of time is proper and it will be deemed to be sent within time. So on that ground, the order of acquittal passed is not correct. Further the evidence adduced will go to show that the accused had not rebutted the presumption and his evidence is not sufficient to come to the conclusion that the cheque was not given to the complainant, but to some chitty company and misusing that cheque, the present complaint was filed. So the order of acquittal passed by the court below is not proper and court below ought to have convicted the accused and sentenced him for the offence under Section 138 of the Negotiable Instruments Act.

6. On the other hand learned counsel for the first respondent submitted that the court below was justified in relying on the decision reported in Madhu v. Omega Pipes Ltd. (1994 (1) KLT 441) : (1994 Cri LJ 3439) (Ker) to come to the conclusion that notice issued