IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 CRL.A.No. 272 of 2006() ----------------------- CC.650/2002 of JUDL.MAGISTRATE OF FIRST CLASS I, KOLENCHERRY .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- JAMES JOSEPH, AGED 45 YEARS, KANANICKAL HOUSE, PERUMPURAM P.O., PAMBAKKUDA. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): RESPONDENTS/ACCUSED & STATE: ------------------------------------------- 1. P.K. SUKUMARAN, AGED 50 YEARS, MADATHIKKUDIYIL HOUSE, PANCODE P.O., PUTHENCRUZ, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.ANILKUMAR (KALLESSERIL) FOR R1 PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.272 of 2006 ----------------------------------------------- Dated 16th March, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act(for short, 'the Act'). To prove his case, prosecution examined PW1 and marked Exts.P1 to P6. The accused did not adduce any evidence. 3. The trial court found that the complaint is premature. As per the evidence of PW1, notice under Section 138(b) of the Act was received by the first respondent on 17.7.2002. A complaint was filed on 31.7.2002, after expiry of 14 days only. The complaint can be filed only after expiry of 15 days of receipt of notice by the drawer and hence, the complaint was held to be premature. Therefore, accused was acquitted. 4. Heard appellant's counsel. The first respondent Crl.Appeal No.272/06 2 did not enter appearance. Perused records. Learned counsel for appellant argued that trial court committed a mistake in entering a finding that first respondent received the notice on 17.7.2002 because in the re-examination of PW1, it is clarified that 17.7.2002 is only the date on which appellant received the acknowledgment card, Ext.P6. It was only a mistake committed by appellant in making a statement in the chief examination and cross examination that accused received the notice only on 17.7.2002. It was pointed out that as per the postal receipt, the notice was sent on 8.7.2010 and it is only probable that accused would have received the notice much prior to 17.7.2002. Unfortunately in Ext.P6, the date of receipt of notice is not seen. 5. Learned counsel for appellant also argued that even if it is accepted that the notice was received by first respondent only on 17.7.2002 and complaint was filed before completion of 15 days, accused cannot be acquitted on the ground that complaint is premature. He cited decision of the Supreme Court in Narsingh Das Tapadia v. Goverdhan Das Crl.Appeal No.272/06 3 Partani and another 2000(7) SCC 183 in support of his contention. It is held in the said decision that if the complaint is found to be premature, the court can await maturity or order the complaint to be returned to complainant for filing it later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon accused to absolve himself from criminal liability for the offence under Section 138 of the Act. 6. It is also observed in the decision cited above that by mere presentation of the complaint in court, it cannot be said that cognizance is taken by Magistrate, it is pointed out. Admittedly, the notice was received by first respondent, but he did not make any payment only because the appellant did not wait for a day more to file the complaint , the trial court ought not to have acquitted the accused in the light of the dictum laid down in the decision cited above, it is argued. 7. On hearing appellant's counsel and on going through the records, I find that there is some discrepancy in the evidence of PW1 in stating the relevant date. It appears that Crl.Appeal No.272/06 4 same mistake would have been committed in stating date of receipt of notice by first respondent. The said discrepancy requires some clarification, in the light of what PW1 stated in re-examination. It may be a case where the notice would have been received by first respondent much prior to 17.7.2002, since the postal receipt shows that the notice was sent on 8.7.2002. However, in the absence of acceptable evidence regarding exact date on which first respondent received the notice, the court cannot take a right decision in this case. 8. In such circumstances, I find that an opportunity has to be given to appellant to clarify by adducing evidence on which day first respondent received the notice under Section 138(b) of the Negotiable Instruments Act. The trial court also will consider whether accused can be acquitted, even if the complaint is premature for the reason stated, in the light of the dictum laid down by Supreme Court in the decision cited by appellant's counsel. 9. In the result, the following order is passed : (i) The order under challenge is set aside. Crl.Appeal No.272/06 5 (ii) The case is remanded to the trial court for fresh consideration and disposal in accordance with law, after giving an opportunity to both sides to adduce evidence on the crucial aspect, as the court may deem it fit and proper, in the light of the observations made in this judgment. (iii) The trial court shall issue notice to counsel appearing on both sides and dispose of the matter in accordance with law, as expeditiously as possible. This appeal is allowed. K.HEMA, JUDGE. tgs