IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 CRL.A.No. 171 of 2002() ---------------------------------- CC.361/2001 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT/ COMPLAINANT: -------------------------------------------- VETTAN SANKARAN, S/O. AYYAPPAN, CHUNDALAPARA, PUTHUPARAMBA P.O. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS/ ACCUSED/STATE : -------------------------------------------------- 1. N.S.SASTHEENDRAN @ N.S.SATHEENDRAN NAIR, S/O. NANUKUTTAN NAIR, EDARIKKODE TEXTILES, P.O.PUTHUPARAMBA-676 509, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. C.M. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.171 OF 2002 ------------------------------ Dated this the 27th day of May, 2009 JUDGMENT This is an appeal preferred against the order of acquittal in C.C.No.361/2001 of the JFCM, Malappuram. The prosecution is one under Section 138 of the N.I.Act and it is the case of the complainant that the accused had borrowed a sum of Rs.75,000/= and towards the discharge of the liability, issued a cheque dated 18.7.1998 when presented for encashment, it was returned with the endorsement of insufficiency of funds on 21.7.1998. A lawyer notice was issued on 31.7.1998 which came back with the endorsement unclaimed and thereafter the prosecution was initiated. Though the court below found all points except the question of limitation in favour of the complainant, it non-suited the complainant on the plea of limitation. So, the only point that arises for determination is whether there is anything to interfere with the said decision rendered by the court below. As stated earlier by me, the cheque is dated 18.7.1998. The intimation 2 Crl.A.171/02 of dishonour was received on 21.7.1998. Notice was issued on 31.7.1998. It was intimated to the accused on 1.8.1998 and again it was repeated and it was found that he was absent on 3.8.1998 and thereafter it was returned back on 10.8.1998 with the endorsement unclaimed. Under the provisions of the Negotiable Instruments Act (Sections 138 (b) & (c)), a notice has to be issued regarding the dishonour within 15 days of the receipt of the information from the bank regarding the return of the cheque and the complainant has to wait for 15 days to file a complaint after the receipt of the said notice by the accused so as to enable him to file the complaint. Under Section 142 (b), a complaint has to be preferred within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138 or in other words, it is within one month from the date of receipt of the notice, the complaint has to be filed. There will not be any difficulty in cases where notices are received to reckon the date very easily. But where notices are sent in proper address, it is attempted to be served on 3 Crl.A.171/02 the person to whom it is addressed. But he does not collect it in spite of the intimation, then notice will be returned as unclaimed. The question that arises for determination is whether the date has to be reckoned from the date of receipt of the cover back with the endorsement unclaimed or on an earlier date. So far as this case is concerned, if it is from the date of returning of the cover namely 10.8.1998, then the complainant can calculate 15 days of waiting and he can afford to wait till 24.9.1998 to file the complaint. But if it is the first date of intimating the accused, which is 1.8.1998 in this case, then necessarily the complaint has to be filed certainly before 18.9.1998. Learned counsel would submit that the Delhi High Court in the decision reported in Shri Ashwani Kumar Julka v. Lt. Col. Parthojit Choudhary (Retd.) had considered this aspect and had laid down the principles to be applied. It was a case where a notice was sent and it was returned on 29.11.1996. The court found applying these principles it is clear that as per the endorsement on the envelop registered, envelop was lastly 4 Crl.A.171/02 taken by the postman at the residential address of the accused on 29.11.1996 and at his official address on 28.11.1996 and thereafter made his endorsement to the effect that on repeatedly going to him the receiver does not meet. The period of 15 days cannot be calculated from 30.11.1996 when envelops were received back by the complainant. If the limitation is to be counted from 28.11.1996 or 29.11.1996, the last date for filing the complaint would be 13.1.1997 or 14.1.1997. So, the court held that the initiation is barred by limitation. From the discussion made in that decision, it has to be stated that the date to be reckoned is the last date on which the postman had taken the envelop. A perusal of the said fact in this case would reveal that it was taken on 3.8.1998. When 15 days is calculated from that date including 3.8.1998, 15 days will expire on 17.8.1998 and 30 days from the date 17.8.1998 would be over on 16.9.1998 whereas the complaint is filed here only on 18.9.1998. So, it has to be held that the complaint is not filed within the statutory period and therefore, 5 Crl.A.171/02 though there is difference in one or two days, the net result is that the action initiated is beyond the period prescribed and therefore, the prosecution will not lie. I do not find any ground to interfere with the decision rendered by the trial court and therefore the appeal is dismissed. M.N. KRISHNAN, JUDGE cl 6 Crl.A.171/02 7 Crl.A.171/02