..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5410 of 2005 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2005 Mrs.Ishita Rakesh Shah. ..Applicant. Versus Mr.Nitin Balkishan Bihani and Anr. ..Respondents. ... Mr.M.H.Solkar, Adv. for the Applicant. Mr.K.H.Chopda, Adv. for Respondent No.1. Mr.K.V.Saste, APP, for Respondent No.2-State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 11th June, 2008. DATED : 11th June, 2008. DATED : 11th June, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 24th June, 2005 passed by the learned Metropolitan Magistrate, 21st Court, Bandra, Mumbai in C.C.No.317/S/2003. By the said judgment and order, the learned Magistrate acquitted respondent No.1-orig. accused of the offence under Section of 138 of N.I.Act. 2. The case of the complainant is that an ..(2).. order was placed with the complainant by the accused. In respect of the said order, she received the cheque in question. The cheque was dishonoured, hence complaint came to be filed. 3. I have heard the learned Counsel for the applicant-Orig.complainant and the learned Counsel for the respondent No.1-orig.accused. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. 4. The case of the complainant is that the cheque came to be dishonoured and the memo from the bank regarding dishonour of cheque was received by her on 26.6.2003. Hence, notice came to be sent to the accused. However, thereafter the complainant realised that the notice was wrongly dated 10th June, 2003 whereas it should have been dated 30th June, 2003. Hence a corrigendum letter dated 9th July, 2003 came to be sent stating therein that the date of the first notice be read as 30th June, 2003. Thereafter another notice came to be issued by the complainant dated 21st July, 2003. From the ..(3).. evidence on record, it is seen that the complainant has failed to prove the notice dated 21st July, 2003. The learned Magistrate held that the complaint was filed beyond the period of limitation and hence he acquitted the respondent-accused. According to the learned Magistrate the complaint ought to have been filed on 28th August, 2003, however, the complaint came to be filed on 6th September, 2003 which is beyond limitation. No prayer was made for any condonation of delay. 5. It would be proper to mention here about period of limitation provided by Section 142 of N.I. Act for filing of the complaint. Time limit for filing of the complaint is to be counted from the date immediately following the date on which the period of 15 days from the date of receipt of notice by drawee expires. The cheque was dishonoured and memo from the bank was received on 26th June, 2003. Thereafter first notice came to be issued on 30th June, 2003. However, as the date therein was stated wrongly as 10th June, 2003, a corrigendum letter was issued on 9th July, ..(4).. 2003 stating therein that the correct date of the first notice is 30th June, 2003. Mr.Chopda, the learned counsel for respondent No.1-orig.accused accepts that the correct date on the first notice ought to have been 30th June, 2003 and not 10th June, 2003. 6. In the present case the notice dated 30th June, 2003 sent by drawee can be said deemed served on the address/drawer of the cheque on 12th July, 2003 because postal remark dated 12th July, 2003 appears on the envelope. It is not known on which day the said envelope with the aforesaid remarks has been received back at the address of sender or at the post office of sender. Therefore the period of 15 days from the date of receipt of notice shall have to be computed with effect from 13th July, 2003 and that period expired on 28th July, 2003. 7. According to Mr.Solkar the learned Counsel for the applicant, the period of limitation would not run from the date of the first notice dated 30th June, 2003, but, the period of limitation ..(5).. would be counted in respect of the corrigendum letter dated 9th July, 2003 as the corrigendum letter gives meaning to the earlier notice dated 30th June, 2003. According to Mr.Solkar the corrigendum letter is served on 21st July, 2003 and hence the period of 15 days as made available for compliance of demand shall be computed from 22nd July, 2003. 8. As far as letter dated 9th July, 2003 is concerned, it is not the case of the complainant that it was a notice but it was only a corrigendum letter in respect of change of date. Mr.Solkar also admits that the letter dated 9th July, 2003 is not a notice but it is only in respect of correction of date in the first notice. Thus, it is seen that the letter dated 9th July, 2003 is not a fresh notice of demand under Section 138(b) of N.I.Act. This is also clear from the contents of the said letter dated 9th July, 2003. Had there been a fresh demand notice then situation may have been different. Therefore in the present case, computation of period for filing of the complaint shall be reckoned from the day following ..(6).. the date on which period of 15 days from the date of receipt of notice of drawee expires. As already observed, deemed service of notice was on 12th July, 2003, hence the period of 15 days shall be reckoned from 13th July, 2003 and it expires on 28th July, 2003. In terms of Section 142 of N.I. Act the cognizance of the complaint shall be taken if that complaint has been filed within the period of one month. However, the complainant choose to file the complaint on 6th September, 2003 instead of 28th August, 2003. For what reason she could not file within the period of one month is nowhere explained and opportunity to explain was not availed. 9. Mr.Solkar has placed reliance on the decision of the Single Judge of the Kerala High Court in the case of Aniyah Thomas Chacko Vs. Aniyah Thomas Chacko Vs. Aniyah Thomas Chacko Vs. Varvelil Bankers & Anr. Varvelil Bankers & Anr. Varvelil Bankers & Anr. reported in 2006 CRI.L.J. 2006 CRI.L.J. 2006 CRI.L.J. 4356 4356 4356, wherein it is observed that the notice being fundamentally defective will not set clock of limitation ticking. Mr.Solkar submitted that in the first notice, the date was incorrect, hence the notice was defective, therefore, limitation ..(7).. cannot be counted in respect of the said notice. However in the case of Aniyah Chacko (supra) Aniyah Chacko (supra) Aniyah Chacko (supra), it is seen that the complainant had issued notice, then he found that the said notice was defective, hence he represented the cheque and thereafter fresh notice came to be issued on the cheque being dishonoured. In such circumstances, it was held that the first notice being fundamentally defective it will not set clock of limitation ticking. However, in the present case there is no representation of the cheque and no case that any fresh notice was issued. The complainant has only issued one notice i.e. notice dated 30th June, 2003. As far as notice dated 21st July, 2003 is concerned, I have already observed that it has not been proved. It is not the complainant’s case that letter dated 9th July, 2003 is a notice. Hence the facts in the case relied on being entirely different, the said decision cannot apply to the present case. 10. Thereafter reliance was placed by Mr.Solkar on another decision of a Single Judge of Kerala High Court in the case of T.N. Unnikrishnan Vs. T.N. Unnikrishnan Vs. T.N. Unnikrishnan Vs. ..(8).. T.K. Ramankutty & Anr T.K. Ramankutty & Anr T.K. Ramankutty & Anr. reported in 2006 CRI. 2006 CRI. 2006 CRI. L.J. 4700 L.J. 4700 L.J. 4700. He has placed reliance on the observations in the said decision wherein it is observed that the notice sent on first occasion did not reach accused and came back with remarks that there was no such addressee and hence notice was sent on second occasion which reached accused. In such case it was held that the limitation starts from the service of second notice. Again the facts in the present case and the case relied on are entirely different, hence this decision would be of no avail to the complainant. 11. Looking to the evidence on record,I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 12. It is well settled that if the view of acquittal could have been reasonably arrived at then mere circumstance that the lower Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 SC 66 AIR 1971 SC 66 AIR 1971 SC 66 ..(9).. Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1. In the case of C.Anthony C.Anthony C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in Appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view hence, no interference is called for. Application for leave to appeal is rejected. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)