A complaint under Section 138 of the Negotiable Instruments Act is maintainable only if filed after the expiry of the 15-day notice period, as premature complaints are non-est.

In this appeal filed under Section 378 (4) of Cr.P.C , the complainant has challenged impugned judgment and order of the trial Court by which the complaint filed by him against the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act') came to be dismissed.

2. For the sake of convenience, parties are referred to by their rank before the trial Court.

3. It is the case of the complainant that he and accused are friends and well known to each other since more than 20 years. In the first week of December 2009, accused approached the complainant, with a request for hand loan in a sum of Rs.4 lakhs to meet his urgent domestic and family necessities. He agreed to repay the same within six months. Though at that time, complainant was able to advance only Rs.3 lakhs, on the request and insistence of accused, complainant was able to adjust and pay a sum of Rs.3,80,000/- to the accused by way of hand loan. However, after lapse of six months, accused failed to repay the same and on the repeated request and demand by the complainant, accused issued cheque dated 28.06.2010 and 30.07.2010 for Rs.1,90,000/- each and requested the complainant to present them on 10.08.2010 for encashment. However, when complainant presented them for encashment, they were dishonoured for want of sufficient funds. Without any alternative, complainant got issued legal notice dated 19.08.2010 through RPAD and Certificate of Posting. Even though the notice is duly served on the accused, he has failed to repay the amount due. However, he has sent evasive reply. Without any alternative, the complaint is filed.

4. After service of summons, accused has appeared before the trial Court and contested the case. He has pleaded not guilty to the plea recorded by the trial Court and claimed trial.

5. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and relied upon Ex.P1 to 11.

6. During the course of his statement under Section 313 Cr.P.C , the accused has denied incriminating evidence led by the complainant.

7. In fact, the accused has stepped into the witness box and examined himself as DW-1. He has relied upon Ex.D1 and 2.

8. Vide the impugned judgment and order the trial Court acquitted the accused.

9. Being aggrieved by the same complainant is before this Court, contending that it is perverse, illegal and besides being erroneous and as such liable to be set aside. The trial Court has not examined the evidence adduced by the complainant in proper perspective and has committed error. Though the complaint was filed after lapse of 15 days from the date of service of notice, the trial Court has failed to appreciate the same. It has not appreciated the fact that the notice sent under the certificate of posting is served on the accused within two days of issue. In fact, the accused during the course of his evidence has not stated when exactly the notice was served on him. Without appreciating this aspect, the trial Court has committed error in dismissing the complaint on the ground that it is premature. The notice sent to the accused through RPAD as well as under Certificate of Posting is served on the accused on 21.08.2010 itself and this fact is not appreciated by the trial Court. Viewed from any angle, the impugned judgment and order are not tenable and pray to allow the appeal, convict the accused and sentence in accordance with law.

10. On the other hand, the learned counsel for accused supported the impugned judgment and order of the trial Court and sought for dismissal of the appeal.

11. In support of arguments, he has relied upon the following decisions:

(i) Yogendra Pratap Singh Vs Savitri Pandey and another (Yogendra Pratap Singh)1 (ii) Saketh India Ltd. and Ors. Vs. India Securities Ltd. (Saketh India Ltd.)2 (iii) K.M.Nagaraj Vs. T.C.Govindegowda (K.M.Nagaraj)3 1 (2014) 10 SCC cases 713 2 (1999) 3 SCC 1 (iv) M.B.Rajasekhar Vs. Savithramma (M.B.Rajasekhar