ORDER :

1. At the instance of the petitioner, Complaint Case bearing No. C/1-2673 of 2010 (T.R. No. 926 of 2013) was instituted against opposite party no. 2 under Section 138 of the Negotiable Instruments Act for failing to discharge the debt of Rs. 92,000/- which he had availed of from the petitioner on 01.05.2010, by way of friendly loan. On 02.08.2010, opposite party no. 2 issued a cheque bearing no. 611592 in favour of the petitioner drawn on Canara Bank which on presentation was dishonored with the endorsement due to “insufficient funds” vide endorsement dated 05.08.2010. The petitioner sent a legal notice by registered post on 18.08.2010 requiring opposite party no. 2 to make payment of the cheque amount. The legal notice issued by the petitioner was received by opposite party no. 2 on 19.08.2010, however, he did not make payment to the petitioner and therefore, he has instituted the complaint case on 03.09.2010. In the trial, he has examined himself as CW-1 and on closure of his evidence the statement of opposite party no. 2 was recorded by the Court on 01.03.2013. In defence, the accused/O.P. No. 2 has examined himself and denied his liability of any legally payable debt to the petitioner. He has produced in evidence deposit-slip of loan account bearing No. 0995741002135 dated 16.08.2011 for Rs. 30,000/-. The petitioner-complainant has also led in evidence original cheque dated 02.08.2010, cheque return memo, legal notice dated 18.08.2010 and the postal receipt with acknowledgment card.

2. The learned trial Judge has found the opposite party no. 2 guilty and sentenced him to R.I. for one year under Section 138 of the Negotiable Instruments Act and further directed him to make payment of compensation amount of Rs. 92,000/- with a default stipulation to undergo S.I. for six months, vide judgment dated 16.09.2013 passed in T.R. No. 926 of 2013. The learned Appellate Court has however interfered with the judgment passed in T.R. No. 926 of 2013 on the ground that the complaint case was instituted before the statutory time for making payment of any debt or other liability by the drawer of the cheque.

3. In Criminal Appeal No. 270 of 2013, the Appellate Court has appreciated the evidence and materials on record in the following manner:

10. The facts revealing the essential ingredients of maintaining the case u/s 138 N.I. Act can be seen at a glance:

11. It is apparent from above chart that the instant case was filed on 03.09.2010 after service of notice on 19.08.2010. It means 12 days in August +3 days in September i.e. it was filed just on 15th days only, meaning thereby the time gap between filing of case from service of notice is => (03.09.2010) - (19.08.2010) = 14 days. Thus, without giving complete 15 days to accused-appellant for making payment of the cheque amount, this case was filed on just 15th day from date of service of notice. In other words, cause of action had not come into existence at the time of filing case because complete 15 days [till 12 night of 3rd September 2010] had to be given to accused-appellant to make the payment and on his failure to make payment within stipulated time, the offence can only be said to have been committed. Had the case been filed on 04.09.2010, it would surely have been maintainable.

12. The settled law on this issue by the Hon'ble Supreme Court be as follows:

In a case reported in JLJR 2014 (SC) 163 the Hon'ble Supreme Court have pleased to observe. “After the sending of the notice, 15 days time is to be given to the notice from the date of receipt of th