IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 CRL.A.No. 725 of 2002() ------------------------------ (AGAINST JUDGMENT IN ST.1481/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR DATED 30.05.2002) .................... APPELLANT(S): COMPLAINANT: --------------------------------------------- A.T.ANTONY, ROOM NO.7, PREMIER LODGE, CHEMBOOTTIL LANE, THRISSUR. BY ADVS. SRI.M.SASINDRAN SRI.M.B.PRAJITH RESPONDENT(S): ACCUSED: --------------------------------------- 1. MRS.SHERJI HANEEFA, W/O. HANEEFA, PALAYAMKOTT HOUSE, KODAKARA P.O., THRISSUR DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.ABRAHAM MATHEW (VETTOOR) FOR R1 PUBLIC PROSECUTOR MR. C.M. NAZAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: LN M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 725 OF 2002 ------------------------------------- Dated this the 24th day of June, 2009. J U D G M E N T This is an appeal preferred against the order of acquittal passed in S.T.1481/99 of the Judicial first class Magistrate No.II, Thrissur, which was a case filed under section 138 of Negotiable Instruments Act. It is the case of the complainant that the accused had borrowed a sum of Rs. 1,50,000/- and towards the discharge of the liability had issued the cheque which when presented for enchashment returned with the endorsement of insufficiency of funds'. The notice was issued which was returned and the amount was not paid and so the prosecution launched. The trial court held that the statutory notice is not in compliance with the statutory requirements and therefore acquitted the accused on that ground. The court below observed that when an intimation is received to the bank CRA. NO. 725/2002 2 through which the cheque had been presented for encashment it becomes the agent of the person who had persented cheque and that the said date will be relevant for the purpose of the section. I am to state at the outset that it is a totally misconceived notion of the learned Magistrate and against the statutory mandate contained in the section. Section 138 (b) of the Negotiable Instruments Act states that a notice has to be issued within 15 days of the receipt of information by him from the Bank regarding the return of the cheque. So the cause of action for issuance of a notice will arise only from the date of information received from the bank. Now we will refer to the few days which are relevant in this case. The Bank has received the intimation on 23.2.1998. If that is the date to be reckoned then date of the issuance of notice which is on 23.3.1998 will be beyond the prescribed period of 15 days. In order to satisfy the conscious of the court, it is for the CRA. NO. 725/2002 3 complianant to establish when he actually received the intimation regarding the dishonour of the cheque from the bank. In order to substantiate that contention the complainant has produced Ext.P4 which is a cover. It is a cover with a seal of 17.3.1998. If it is acceptable then the notice is within time. Otherwise the complainant has to be dismissed and the accused has to be acquitted. In such a situation the evidence of DW1 the Bank Manager requires consideration. Admittedly the bank has got the intimation which bears the date 23.2.1998. It is when Ext.P4 namely the cover was put to the Bank Manager he would depose that he is seeing that cover for the first time and does not have information the purpose for which it was issued. He also stated that when a cheque is dishonoured the person will be informed overphone or the matter will be intimated to him within 2 days by registered post. There will be also return memo and the debit advise. What is found in this case is only a CRA. NO. 725/2002 4 cover and an intimation dated 23.2.1998. It is also stated when the party comes " . Unfortunately for the reasons best known we find that the bank is not in a position to produce in local delivery book and filed an affidavit that due to the passage of time it cannot produce the cover. So what you find from Ext.P4 is only a seal with date. In order to accept that there must be some corresponding valid entry somewhere in the document maintained by the bank in the ordinary course of business especially for the reason that valid document such as cheque when returned should find a place in some documents maintained by the Bank. No evidence is forthcoming in that regard. In the cross examination so many suggestive questions were put and the Bank Manager would not yes to such questions. But what we are concerned is what happened in this case. I am afraid the materials supplied are not sufficient to indicate CRA. NO. 725/2002 5 that the cheque returned intimation was received by the complainant only on 17.3.1998. When it is not proved by conjectures and surmises, one cannot presume the date when it was intimated. The evidence of the Bank Manager would show that the intimation or information ususally is sent by registered post. The Bank has received it on 23.2.1998 and the communication should have been in the Month of February itself. Since the notice is issued only on 23.3.1998, it has to be stated that it was beyond the statutory mandate of 15 days which makes the prosecution invalid under law. Therefore I agree though on a different ground with the Magistrate that the accused cannot be proceeded against in this case, on account of the non compliance of the statutory mandate. Therefore, the appeal fails and same is dismissed. M.N.KRISHNAN, JUDGE ln. CRA. NO. 725/2002 6 M.N.KRISHNAN, J. CRA. No. 725/2002 J U D G M E NT 24th June, 2009.