THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.276 of 2002 JUDGMENT: This appeal is filed under Section 378 (4) of the Code of Criminal Procedure, 1973, against the judgment, dated 28.01.2002, passed in C.C.No.708 of 1998, on the file of the XVII Metropolitan Magistrate, Hyderabad, whereunder and whereby the accused-first respondent herein was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’). 2. The brief facts that are necessary for the disposal of the present appeal may be stated as follows: The complainant is a finance company and it advanced an amount of Rs.7,75,000/- towards loan to the accused. The accused issued a cheque for Rs.7,75,000/- on 23.02.1998 towards the repayment of the said amount. When the said cheque was presented in the bank, it was returned with an endorsement “ACCOUNT CLOSED” on 15.05.1998. The complainant got issued a legal notice dated 22.05.1998 and the accused having received the same neither paid the amount nor replied. 3. When the accused was examined under Section 251 Cr.P.C., for the offence punishable under Section 138 of the Act, he denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the complainant examined P.W.1 and got marked Exs.P.1 to P.12. On behalf of the defence, no oral or documentary evidence was adduced. 5. The trial Court, after considering the evidence placed on record came to the conclusion that the complaint is not maintainable in view of the fact that it was not filed within the time, and accordingly acquitted the accused. Challenging the same, the present appeal is filed. 6 . The learned counsel appearing for the appellant/complainant contended that as per the endorsement, the cheque was returned on 15.05.1998 and thereupon the statutory legal notice was got issued by the complainant on 22.05.1998 and that when the accused failed to repay the said amount, the complaint was lodged, and therefore, it was well within the time. Hence, he prayed to set aside the impugned judgment of acquittal and convict the accused. 7. On the other hand, the learned counsel appearing for the first respondent/accused contended that the complaint is barred by limitation in view of the fact that the cause of action arises only once i.e., immediately after fifteenth day after receipt of the notice dated 09.03.1998 and the trial Court after considering the evidence on record, rightly found the accused not guilty of the offence punishable under Section 138 of the Act. 8. Now, the point for determination is whether the complainant proved its case beyond all reasonable doubt for the offence punishable under Section 138 of the Act? 09. There cannot be any dispute that the accused is presumed to be innocent, unless contrary is proved by the complainant. The presumption of innocence is further strengthened by an order of acquittal. Unless the finding recorded by the trial Court is shown to be perverse or contrary to law, this Court would not interfere with the said findings. At the same time, this Court has got full powers to re- appreciate the evidence, but it will be slow in interfering with the order of acquittal. 10. The necessary ingredients to constitute the offence under Section 138 of the Act are that the cheque has been presented and it was returned as unpaid. The statutory legal notice has to be issued. If the accused fails to pay that amount within 15 days of the receipt of the said notice, a cause of action arises for the complaint. Therefore, from 16th day onwards, the complainant will have a right to lodge a complaint against the accused, but that has to be done within 30 days. 11. The factual matrix is not seriously in dispute. The appellant, which is a finance company, advanced a sum of Rs.7,75,000/- to the accused. To discharge the said debt, the accused issued Ex.P.3- cheque. When the said cheque was presented in the bank for encashment, it was returned with an endorsement “ACCOUNT CLOSED”. It is not in dispute that Ex.P.3 cheque was presented on two occasions i.e., on 23.02.1998 and 14.05.1998. However, the cheque return memo dated 23.02.1998 has not been filed into the Court. That fact has been suppressed by the complainant. 12. There cannot be any dispute that the cause of action arises only once i.e., immediately after issuance of legal notice when the cheque was returned as unpaid. If the accused paid that amount within 15 days of the receipt of the statutory notice, an offence punishable under Section 138 of the Act would not attract. If the amount is not paid, from 16th day of the date of receipt of the notice, the cause of action arises and thereafter within one month a complaint has to be lodged. 13. The complainant relied upon Ex.P.5-legal notice dated 22.05.1998 as if that was the first notice got issued by him. He also relied upon Ex.P.4 - cheque returned memo dated 15.05.1998. If Ex.P.5 is taken into consideration, the complaint can be said to be well within the time. But, as seen from the endorsement made on Ex.P.3, the cheque in question was returned once on 23.02.1998 in view of endorsement made therein. The evidence of P.W.1 would go to show that he got issued legal notice on 03.03.1998 to the accused through the same advocate. Therefore, when the admission of P.W.1 is very clear that he got issued a notice on 03.03.1998, the complainant has to wait for 15 days and thereafter he has to lodge the complaint. Admittedly, the complaint was lodged on 14.07.1998. So by that time, statutory limitation of 45 days from the date of receipt of notice dated 03.03.1998 had been lapsed. The complainant suppressed the issuance of notice on 03.03.1998 to the accused. Ex.P.11 is the notice dated 09.03.1998 got issued by the accused calling upon the complainant to return the blank cheque. Therefore, on his own admission, it is clear that the complainant issued a notice on 03.03.1998. So, the complainant has no right to lodge a complaint in pursuance of Ex.P.5 legal notice. The trial Court, after an elaborate consideration of the evidence on record, rightly found the accused not guilty of the offence punishable under Section 138 of the Act and the order under challenge does not call for any interference by this Court. There are no compelling or substantial reasons to interfere with the order of acquittal. . 14. The appeal is devoid of merits and the same is accordingly dismissed. _______________ K.C.BHANU, J Date: 30.112009 va