IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 CRL.A.No. 1292 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER DATED 20/01/2004 IN CC.87/1998 of JUDICIAL FIRST CLASS MAGISTRATE COURT I, PUNALUR .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- BASHEER M.M., "NISHAD", KULATHUPUZHA, KULATHUPUZHA VILLAGE, PATHANAPURAM TALUK. BY ADV. SRI.B.JAYASURYA RESPONDENT(S): ACCUSED AND STATE: --------------------------------------------------------------- 1. BALACHANDRAN, PRESIDENT, PUNALUR LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD., Q.1116. 2. PUNALUR LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. Q.1116, REPRESENTED BY ITS SECRETARY. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.1292 of 2004 ---------------------------------------------------- Dated this the 1st day of August, 2011 Judgment The complainant is in appeal. He filed the complaint against the accused alleging offence under Section 138 of the N.I.Act. The accused were acquitted by the learned Magistrate on the ground that the notice sent under proviso (b) to Section 138 of the N.I.Act was beyond the period of 15 days (as the law then stood prescribed under that proviso). Ext.P4 dishonour memo bears the date 25.11.1997. Relying on Ext.P5 intimation, it was found by the learned Magistrate that the dishonour memo was given to the complainant on 27.11.997. But the statutory notice was sent only on 15.12.1997, i.e. beyond the period of 15 days mentioned in proviso (b) to Section 138 of the N.I.Act (as the law stood prior to the amendment). Though an attempt was made by the complainant to prove that the intimation was received only on 5.12.1997, no evidence whatsoever could be adduced by the complainant to support that contention. Therefore, in the absence of evidence, the learned Magistrate was not inclined to accept the case of the complainant that the Crl.A.1292/04 2 intimation from the Bank was received only on 5.12.1997. Going by the endorsement in Ext.P5, it could be gathered that intimation was given to the complainant on 27.11.1997 itself. Therefore, in view of the fact that the notice was not sent within the prescribed time, the finding entered by the learned Magistrate that all the statutory ingredients were not complied with so as to find the accused guilty of the offence under Section 138 of the N.I.Act does not require interference by this court. Therefore, the impugned judgment of acquittal is confirmed. The Criminal Appeal is accordingly dismissed. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.1292/04 3 Crl.A.1292/04 4