The appellate court clarified that the date of intimation regarding cheque dishonor must be excluded for calculating the notice period under Section 138, emphasizing the validity of alterations made with consent.

ORAL JUDGMENT

1. Heard the learned counsel for the appellant and the learned counsel for the respondent.

2. This appeal is filed against the order of acquittal passed by the Trial Court in C.C.No.386/2018 dated 08.02.2019 for the offence punishable under Section 138 of Negotiable Instruments Act .

3. The factual matrix of case of the complainant before the Trial Court that the appellant and respondent are working together in BESCOM at K.R circle, Bengaluru from several years and they are known to each other. The appellant retired from the service in the year 2014 and he has received the substantiating retirement service benefits from the BESCOM authority. The respondent being co-employee wants to perform her sister’s marriage and requested hand loan of Rs.11,70,000/- and she want to discharge her liability towards constructions of house in which she is residing now. Accordingly, the appellant has conceded her request paid the above said amount in the month of June 2014 and she has agreed and promised to repay the amount within two years and after two years the appellant has requested her to repay the said amount and for discharge of her liabilities she has issued a subject matter of Cheque bearing No.511101 dated 02.08.2017 drawn on Canara Bank by assuring that on presentation of the Cheque, the Cheque would be honored. When the same was presented, the same was returned with an endorsement ‘Funds insufficient’ and immediately made the demand and the accused did not come forward to pay the same. The notice was served on the respondent/accused but no reply was given. Hence, compliant was filed and cognizance was taken and accused was secured before the Trial Court and did not plead guilty and hence, the complainant examined himself as P.W.1 and got marked the document Ex.P.1 to Ex.P7. The accused did not lead any defense evidence, however, the accused was subjected to 313 statement. The Trial Court having considered the material on record, both oral and documentary evidence, comes to the conclusion that notice was not issued within period of 30 days and notice was given on 31^st day and also considering the admission given by the P.W.1 that notice was not sent within time and also regarding the alteration in the Cheque which was admitted by the complainant doubted the case of the complainant and comes to the conclusion that the complainant has not proved the case and acquitted the accused.

4. Being aggrieved by the judgment of acquittal, the present appeal is filed before this Court. The main contention of the counsel appearing for the appellant that issuance of cheque is not disputed and only defense was taken that an amount of Rs.11,70,000/- was borrowed and the same was corrected as Rs.11,70,000/-. The counsel would contend that the Cheque was not returned on the ground that there was a correction in the Cheque and also contend that if no such amount was borrowed by the accused, he would have given the reply when the notice was served on the accused. The Trial Court committed an error in coming to the conclusion that notice was issued after the limitation period and fails to take note of the date and also Trial Court comes to the erroneous conclusion that there was an alteration and fails to take note of the signature made by the accused when the correction was made in the Cheque and it is not the case of the accused that signature was not belongs to the accused. The Trial Court ought not to have doubted the said Cheque when the correction was made and the accused herself signed the Cheque with regard to the correction is concerned, the very reasoning given by the Trial Court is erroneous.

5. The counsel in support of the argument relied upon the judgment reported in (2014) 11 SCC 769 in case of Econ Antri Limited V/s Rom Industries Limited and another wherein the Apex Court held that recurring of period of limitation is to be calculated by excluding the date on which the cause of action was arose.

6. The counsel also relied upo