IMPORTANT POINT
The court established that in computing time limits under Section 138 of the NI Act, the first day is excluded and the last day is included.

JUDGMENT :

This appeal is at the instance of the complainant in CC No. 238 of 2000 on the file of Judicial First Class Magistrate Court - I, Kollam, impugning the judgment in Crl. Appeal No. 36 of 2003 on the file of Additional District and Sessions Judge (Adhoc-III), Kollam, by which the conviction of the accused under Section 138 of the Negotiable Instruments Act (for short, ‘the NI Act’) by the trial court was set aside, and the accused was acquitted.

2. The case of the appellant/complainant was that, the 1st respondent/accused borrowed Rs.5 lakh from him on 15.07.1999, and issued Ext.P1 cheque dated 01.12.1999 towards discharge of that debt. He assured him that it would be encashed on presentation before the bank. He presented that cheque before the bank, but it was dishonoured on 10.12.1999 stating reason ‘payment stopped’ and the intimation was received on 16.12.1999. The appellant sent notice to the 1st respondent on 31.12.1999 which was returned unclaimed on 22.01.2000. Since the amount was not paid, he filed a complaint on 18.02.2000.

3. After taking cognizance, on appearance of the accused, particulars of offence was read over, and explained, to which, he pleaded not guilty. Thereupon, PW1 was examined, and Exts. P1 to P7 were marked from the side of the complainant.

4. On closure of the evidence of the complainant, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought on record. The accused himself was examined as DW1. On analyzing the facts and evidence, learned Magistrate found the accused guilty under Section 138 of the NI Act, and he was convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay fine of Rs.5,000/- which shall be given to PW1 as compensation, in case of realization. In default of payment of fine, he was directed to undergo simple imprisonment for a further period of one month.

5. Aggrieved by the conviction and sentence, the accused preferred Crl. Appeal No. 36 of 2003 before Additional District and Sessions Judge (Adhoc - III), Kollam. The appellate court found that, Ext.P1 cheque was issued by the accused towards discharge of Rs.5 lakh which was borrowed by him from the complainant. But finding that the statutory notice under Section 138(b) of the NI Act was sent beyond the statutory period prescribed, the conviction and sentence was set aside and the accused was acquitted. The complainant has preferred this appeal challenging that acquittal, by the appellate court.

6. Heard learned counsel for the appellant as well as learned counsel for the 1st respondent.

7. Learned counsel for the appellant would submit that, regarding execution of Ext.P1 cheque by the accused towards discharge of a legally enforceable debt, there is concurrent finding by the trial court as well as the appellate court. So the only question to be answered in the present appeal is regarding the statutory notice prescribed under Section 138 (b) of the NI Act; was it within the time prescribed or beyond the time.

8. Learned counsel for the 1st respondent pointed out that the definite case of the accused from the very outset was that, the complainant was a stranger to him, and while he was working as a receptionist in a hotel, one Mr.Mohanan who was Circle Inspector of police, Alappuzha stayed in that hotel, and they became acquainted with each other. The accused agreed to construct a building for the brother of Sri. Mohanan for an amount of Rs.1 lakh. He received Rs.50,000/- from Sri.Mohanan as advance amount. As a security for the amount received from Sri. Mohanan, he issued a blank cheque to him. Even after completing the work as agreed, the blank cheque given by the accused was not returned to him. Misusing that cheque, a false complaint was filed against him.

9. On a scrutiny of the trial court judgment, it could be seen that the contention taken up by the accused was thoroughly examined by the learned Magistrate, and found that there was no