THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1557 OF 2004 ORDER: This appeal is directed against the acquittal of the accused in C.C.No.11 of 2000 by the Judicial First Class Magistrate, Wanaparthy on 19.04.2004. The appellant herein is the complainant. He has filed a private complaint against the 1st respondent/accused for the offence under Section 138 of Negotiable Instruments Act alleging that the accused and her husband have jointly doing money lending business in the name of the accused. The husband of the accused is a bank employee and he used to borrow money from many persons on pronotes by offering more interest than the bank interest. The complainant gave Rs.67,000/- to the husband of the accused by expecting higher interest and he has to recover Rs.83,000/- including interest. Subsequently the son of the complainant borrowed Rs.18,000/- from the accused on daily payment account, which has came up totally Rs.58,000/-. Subsequently, the husband of the accused went underground due to financial problems. The complainant approached the accused for settlement of the account and arrived at Rs.25,000/- as due amount, for which the accused issued a cheque bearing No.223630 on 06.12.1999 and when the same was presented by the complainant in State Bank of Hyderabad, Wanaparthy for realization, on 22.12.1999 complainant received a memo from his bank by stating “insufficient funds”. The complainant issued a legal notice on 30.12.1999 for making payment of said due amount, but it was unclaimed by the accused and failed to pay the cheque amount. Hence the accused is liable for offence under Section 138 of Negotiable Instruments Act. The accused has denied the offence under Section 138 Negotiable Instruments Act when she was examined under Section 251 Cr.P.C. by the lower Court. In order to establish the said charge, the complainant examined P.Ws.1 to 3 and got marked Exs.P.1 to P.4. On behalf of the accused, D.W.1 was examined and got marked Exs.D.1 to D.3. The learned Magistrate by taking into consideration of the said oral and documentary evidence found that the complainant failed to prove that there is legally enforceable debt by the accused and the complaint was filed prematurely i.e. before 15 days of the return of the notice, thereby held that the offence under Section 138 Negotiable Instruments Act is not established and acquitted the accused. Aggrieved by the said acquittal, the complainant has filed the present appeal. Now, the point that arises for consideration is: Whether the complainant could able to establish the offence under Section 138 Negotiable Instruments Act against the accused beyond reasonable doubt? P O I N T: The appellant’s counsel has pleaded that there is no dispute by the accused about the issuance of the cheque for Rs.25,000/- and as the complainant has paid Rs.67,000/- to the husband of the accused and the same is liable to be refunded to him including the interest, which comes to Rs.83,000/-. As the son of the complainant borrowed Rs.18,000/- from the accused and as the accused went underground due to financial problems, the accused has settled the account of the complainant by issuing a cheque for Rs.25,000/-, thereby the complainant could able to establish that there is pre-existing debt for issuance of the cheque by the accused. He further pleaded that the notice issued to the accused was returned un-served and after waiting for ‘15’ days, he has filed the complaint on 20.01.2000, as such the said complaint is filed in accordance with the period prescribed under Section 138 Negotiable Instruments Act. Therefore, the lower Court has erred in coming to the said conclusion that the complaint is premature one. The 1st respondent’s counsel on the other hand has pleaded that the accused has not borrowed any amount from the complainant and when the complainant has lent the amount to her husband, she has issued a blank cheque as security for the debt, but not for repayment of the settled amount of Rs.25,000/- due by her husband. As the notice was returned on 06.01.2000, the complaint ought to have been filed on 21.01.2000, but it was filed on 20.01.2000, which was premature one and the lower Court has rightly acquitted the accused. According to the complainant, he lent an amount of Rs.67,000/- to the husband of the accused and he has to get Rs.83,000/- including interest from the husband of the accused. Subsequently, the son of the complainant has borrowed Rs.18,000/- from the accused, which has came up totally Rs.58,000/-. As the husband of the accused is not available, he has settled the account with the accused and the accused issued a cheque for Rs.25,000/- in favour of the complainant. Admittedly, the complainant lent an amount of Rs.67,000/- to the husband of the accused but not to the accused and the same was also admitted by P.W.1. It is not the case of the complainant that the husband of the accused is no more, as such the accused is liable for payment of the amount due by her husband and the accused has right to realize the amount, which was lent to the son of the complainant and she has no personal liability to discharge the loan of her husband when he is alive. According to the complainant, the whereabouts of the husband of the accused is not known; as such he has settled the account with the accused. Since the accused is not liable to repay the amount lent by the complainant to her husband as he is alive and as the accused has got every right to recover the amount due from the son of the complainant, the complainant has failed to establish the settlement of the account as pleaded by him. Therefore, as rightly observed by the lower Court, the complainant has failed to establish the pre-existing debt for issuance of the cheque by the accused, which was dishonoured. With regard to issuance of notice, the cheque was issued by the accused on 06.12.1999 and the same was presented in bank on 22.12.1999, but it was dishonoured for want of sufficient funds. After return of the cheque, the complainant has issued a notice on 30.12.1999 and it was returned back with an endorsement that the door was locked for 7 days and it was unclaimed, the same took place on 06.01.2000. As the registered letter was not claimed by the accused, it is deemed to have been served on the accused; as such the date of service of notice on the accused has to be taken as 06.01.2000. As per Section 138 Negotiable Instruments Act, after service of notice, the complainant has to wait for 15 days for filing the complainant. In the present case, the service was deemed to have taken place on 06.01.2000 and the complaint was filed on 20.01.2000 i.e. within 15 days of service of notice. As the complaint was filed within 15 days of service of notice, the same was premature one. Thus, as rightly observed by the lower Court, the complaint was premature one. As the complainant has failed to establish the pre- existing debt and the complaint was filed prematurely, the complainant failed to establish the offence under Section 138 Negotiable Instruments Act. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 04th November, 2011 Ksp