Failure to issue statutory notice within the required timeframe under Section 138 of the Negotiable Instrument Act invalidates the prosecution.

O R D E R

This Criminal Miscellaneous Case is filed to quash the proceedings in C.C. No.391/2021 on the file of Additional Chief Judicial Magistrate Court – II, Ernakulam. The petitioner is the accused in the above case. The offences alleged against the petitioner are punishable under Section 138 of the Negotiable Instrument Act .

2. The main contention of the petitioner is that Annexure-A1 prosecution is not maintainable because Annexure-A1 is barred by limitation as contemplated under Section 138 (1)

(b) of the Negotiable Instrument Act . It is the case of the petitioner that there is a delay of 42 days in sending the demand notice by the second respondent to the petitioner. Hence this Criminal Miscellaneous Case is filed to quash the proceedings.

3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Even though notice is issued to the 2nd respondent/complainant, there is no appearance for the 2nd respondent.

4. When this case came up for consideration before this Court on 26.09.2023, this Court passed the following order;

“The main contention of the petitioner is that the legal notice issued under Section 138 (1)(b) was not send within a statutory period.

The registry will get a report from the Additional Chief Judicial Magistrate Court, Ernakulam, directing the court below to submit report before this Court, after perusing the original documents, whether the legal notice was send within the statutory period or not.

Post along with the report.”

5. The Special Additional Chief Judicial Magistrate Court, Ernakulam (for the trial of criminal cases against sitting and former Mps/MLAs of the State) submitted a report. It will be better to extract the relevant portion of the report;

“As per order referred above, I was directed to peruse the original documents in CC No.391/2021 and to report whether the legal notice was sent within the statutory period or not. The complaint in this case was originally filed before the Judicial First Class Magistrate Court (for the trial of cases under the Negotiable Instruments Act, 1881), Ernakulam and the same was taken to the file of that court as CC No.2899/2020. Later, this case was transferred to this court on the basis of order of the hon'ble Chief Judicial Magistrate, Ernakulam. The case was received at this court and was numbered as CC No.391/2021. I have gone through the complaint and copy of documents filed by the complainant. In the complaint, though the complainant has stated that the cheque involved in the case was dishonoured on presentation and that a statutory notice was issued to the accused requiring him to pay the amount covered by the cheque, the date of dishonour, the date on which the complainant received intimation of dishonour, the date of statutory notice and the date on which the said notice was issued are not seen mentioned in the complaint. In the copy of the dishonour memo, the date of presentation of cheque is seen mentioned as 30.04.2020 and the date of return is seen noted as 01.05.2020. On perusal of the copy of notice and copy of postal receipt, it is noticed that the notice was dated 10.06.2020 and it was sent on 12.06.2020. The date on which the complainant received information regarding the return of cheque is non discernible from the complaint or document. However, from the copy of return memo it is made out that the cheque was returned on 01.05.2020. The statutory notice dated 10.06.2020 was sent only on 12.06.2020. So the notice is seen sent beyond the statutory period. The copies of complaint, dishonour memo and lawyer notice along with postal receipt are also submitted herewith for kind perusal.”

6. From the above report it is clear that the statutory notice dated 10.06.2020 was send only on 12.06.2020 and hence the notice is send beyond the statutory period. If that be the case, the prosecution against the petitioner is unsustainable. The up-short of the above discussion is that this Criminal Miscellaneous Case is to be