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SOPHY THOMAS
M. G. Alexander – Appellant
Versus
Biju Chellappan – Respondent
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.
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.
The court established that the date of receipt of the dishonor memo is excluded in calculating the notice period under Section 138 of the Negotiable Instruments Act.
The correct computation of the statutory period for filing a complaint in cases of dishonoured cheques is essential for the court's decision.
A complaint under Section 138 of the NI Act must be filed within the statutory limitation, and failure to comply with Section 142(b) regarding delay results in dismissal.
Appeal against acquittal under Section 138 NI Act not interferable unless perverse; prior cheque loss notification rebuts presumption; complaint premature before 15 days from 30-day deemed notice ser....
The court clarified that for criminal liability under Section 138, a cheque must be presented to the drawee bank within six months from its date.
Dishonour of cheque – Complainant is not required to prove service of notice on accused before institution of case—Requirement of giving notice is a clear departure from rule of criminal law, where t....
The cause of action under Section 138 of the Negotiable Instruments Act arises immediately upon the return of a notice as 'refused', without needing a subsequent 15-day waiting period for payment.
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