HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2227 of 2004 Date:03.02.2011 Between: P. Ramachandra Raju ….Appellant And: N. Krishnam Raju and another .…. Respondents. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2227 of 2004 JUDGMENT: This appeal arises out of the acquittal of the accused in C.C.No.1116 of 2001 by the IV Metropolitan Magistrate, Hyderabad on 26.8.2004. The appellant herein is the complainant and he has filed the complaint against the 1st respondent herein for an offence under Section 138 of the Negotiable Instruments Act (for short, the Act) alleging that on 12.12.1999 the first respondent approached the complainant for hand loan of Rs.2,00,000/- to meet his Petrol Bunk business and again to repay the same with interest at 24% p.a., and accordingly the complainant has paid the said amount of Rs.2,00,000/- in cash to the accused and the accused executed a demand promissory note. Thereafter, the accused issued a cheque on 9.2.2001 for the said amount of Rs.2,00,000/- in favour of the complainant in discharge of the principal amount and promised to pay the interest in near future. The complainant has submitted the said cheque for realisation but the same was dishonoured on the ground ‘insufficient funds’. The complainant, at the request of the accused again presented on 23.6.2001, but the said cheque was again returned for the same reason of ‘insufficient funds’. The complainant has received the cheque return memo on 7.7.2001 through Express Courier Service i.e., Intracity Conviers P.O.D.No.A-311869. The complainant sent a legal notice to the accused on 13.7.2001 demanding him to pay the amount due under the said cheque within 15 days. The accused failed to pay the amount in spite of receipt of the legal notice. Hence, the complainant filed the complaint under Section 138 of the Act. The lower court taken the cognizance for the offence under Section 138 of the Act and when the accused was examined under Section 251 Cr.P.C, he pleaded not guilty for the said offence. In order to establish the offence, the complainant examined himself as P.W.1 and got marked Exs.P.1 to P.6. No evidence was adduced on behalf of the accused. Taking into consideration of both oral and documentary evidence, the lower court has found the accused not guilty for the offence under Section 138 of the Act and thereby acquitted the accused. Aggrieved by the said acquittal, the present appeal is filed by the complainant. Now the point that arises for consideration is whether the complainant has established the offence punishable under Section 138 of the Act by complying all the provisions contained therein? The lower court has held that the cheque was returned vide Ex.P.2 on 23.6.2001 and there is no proof produced by the complainant that he received the cheque return memo on 7.7.2001 by Courier Service or otherwise as the said cheque was returned on 23.6.2001, the complainant has to give legal notice on or before 8.7.2001 but as the said notice Ex.P.4 was issued on 13.7.2001, the complainant has failed to comply the provisions under Section 138(b) of the Act and thereby held that the complaint is barred by limitation. Now the learned counsel for the appellant contends that they have received a cheque return memo only on 7.7.2001 through the Courier service i.e., Intracity Conviers vide P.O.D No.A-311869. He further pleaded that as per Section 138(b) of the Act, the notice has to be given within 30 days on receipt of the information and as such the finding of the lower court that the complaint is barred by limitation is liable is liable to be set aside. The learned counsel for the 1st respondent, on the other hand, has pleaded that the complainant has not produced any evidence as rightly observed by the lower court that he has received the information with regard to dishonour of the cheque on 7.7.2001. He further pleaded that Section 138(b) of the Act was amended by inserting 30 days instead of 15 days with effect from 6.2.2003. As the said amendment is prospective in nature and as the offence in the present case was taken place prior to the amendment, the complainant has to issue the notice within 15 days but not within 30 days as claimed by the counsel for the appellant. As per the documents field by the complainant, it is evident that Ex.P-2 is the cheque return memo dated 23.6.2001 and Ex.P-4 is the office copy of the legal notice dated 13.7.2001. Therefore, Ex.P-4 is the notice issued by the complainant for claiming for repayment of the amount due under the said cheque amount beyond 15 days. Even though he has pleaded that they have received intimation from the bank on 7.7.2001, no oral or documentary evidence was produced in that regard. The appellant’s counsel also further pleaded in the grounds of appeal that the said plea was not taken by the accused either in the cross-examination of P.W.1 or reply notice. Since the said plea is only a legal plea, 1st respondent need not take the same either in the reply notice or in the cross examination of P.W.1. As the burden is on the complainant, he has to establish the guilt of the accused beyond reasonable doubt. With regard to the issuance of notice under Section 138 (b) of the Act was amended and came into force with effect from 6.2.2003 by substituting the ‘words’ 30 days in the place of ‘words’ 15 days. In the present case, the cheque was dishonoured on 21.6.2001 i.e., prior to the above said amendment. Therefore, the complainant has to give notice within 15 days from the date of receipt of the intimation from the concerned bank. As per the reading of Section 138(b) of the Act, it is evident that the payee or holder in due course of the said transaction as the case may be makes a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. Therefore, the complainant has to give the notice within 15 days from the date of receipt of the information from the bank regarding the return of the cheque. In the present case, even though the complainant has pleaded that he has received the information on 7.7.2001, he could not establish the same by adducing necessary evidence. Therefore, the finding of the lower court that the complainant has not properly complied the provisions of Section 138 (b) of the Act does not warrant any interference. Since the complainant has not complied with the mandatory provision of Section 138(b) of the Act, the lower court has rightly acquitted the accused. Hence, the finding of the lower court does not warrant any interference by this court. In the result, the appeal is dismissed. _____________________ P.DURGA PRASADJ. Date:03.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2227 of 2004 Date:03.02.2011 Gk.