ORDER

1. This appeal has been filed under section 378(4) of Code of Criminal Procedure against the judgment dated 22.1.2002 passed by JMFC, Bhopal in RT No. 968/2001, whereby respondent/accused has been acquitted of an offence under section 138 of N.I. Act.

2. Complainant’s case in brief is that complainant is owner and landlord of duplex house No. HX-1 HIG E-7 extension, Sahpura, Bhopal. Accused is his tenant in aforesaid building. Accused issued a cheque to complainant for payment of rent but the same got dis-honored on account of insufficient fund. Thereafter, complainant filed a complaint under section 138 of N.I. Act. against the accused.

3. Learned senior counsel for the appellant submits that appellant is landlord and respondent/accused is his tenant. Ex. P/1’s cheque was issued for payment of arrears of rent. There is no dispute with respect to the handwriting, signature etc. of Ex. P/1’s cheque. Appellant received Ex. P/2’s information on 13.10.1993 and Ex. P/3’s information on 14.10.1993, Ex. P/4’s demand notice was issued to respondent/accused on 20.10.1993. As per section 138 (b) of N.I. Act, notice is required to be issued within 15 days from date of receipt of information pertaining to dishonour of cheque. Thus, Ex. P/4’s demand notice was issued within limitation prescribed in the law. It is correct that aforesaid notice was received by respondent/accused on 2.11.1993 (Ex. P/5). Learned trial Court has wrongly calculated period mentioned in section 138(b) of N.I. Act. trial Court has calculated limitation from the date of receipt of notice which is against provision of law as mentioned in section 138(b) of N.I. Act and principle laid down by Hon’ble apex Court in C.C. Alavi Haji v. Palapetty Muhammed and another, (2007) 6 SCC 555. Hence, learned trial Court has wrongly acquitted respondent/accused. Therefore, appeal filed by the appellant is allowed and respondent/accused be convicted for offence under section 138 of N.I. Act.

4. Learned counsel for the respondent, after referring to Ex. D/1, submits that as per aforesaid document on 30.6.1995, no arrears of rent was due for payment. Further, as per para 11 of the impugned judgment, within 15 days demand notice has not been received by the respondent. Therefore, appellant’s complaint is time barred. Learned trial Court has rightly dismissed appellant’s complaint. No interference is required to the same. Hence, appeal filed by the appellant be dismissed.

5. Heard. Perused record of the case.

Analysis and findings :-

6. From impugned judgment as well as complaint filed by the appellant/complainant and testimonies of complainant G.D.Narang (PW-1), Dr.Ajay Narang (PW-2), Ashok Dubey (PW-3) and respondent/accused’s examination under section 313 of Cr.P.C. and documents (Ex.P/1 to P/9), it stands clearly established and there is no dispute with respect to that appellant is land lord and owner of house No.H-X-1, HIG duplex situated E-7, Shahpura, Bhopal and in aforesaid house respondent/accused was residing as tenant, Ex.P/1’s cheque was issued by respondent/accused for payment of rent and it got dishonored on account of insufficient fund.

7. Sole issue before this Court is as to whether Ex.P/4’s demand notice was issued within limitation as prescribed under proviso (b) of section 138 of NI Act, which reads as under :

“Provided that nothing contained in this section shall apply unless ……...

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and”

8. Aforesaid provision has been dealt with and discussed by Hon’ble apex Court in the case of C.C.Alavi Hajzi (supra), which is as under :

“7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res inte