1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 168 OF 1999 Datta s/o Bhaurao Kadam, Age: Major, Occ: Agril., R/o. Mangal Sangvi, Tal.Kandhar, District Nanded. .. Appellant (Orig. Complainant) Versus 1. Tukaram s/o Nagnath Waghmare, Age: Major, Occ: Chairman, Yogi Vighalraj Guru Maharaji Seva Sahakari Grah Nirman Sanstha, Gopal Chavadi, Nanded and Hostel owner of Rajabai and Sonabai Mulinche Vastigrah, near Mama Road, Corner, Nanded. (Ori.Accd.No.1) 2. The State of Maharashtra. .. Respondents WITH CRIMINAL APPEAL NO. 205 OF 1999 Shivaji s/o Bhaurao Kadam, Age: 29 years, Occ: Agril., R/o. Mangal Sangvi, Tal.Kandhar, District Nanded. .. Appellant (Orig. Complainant) Versus 1. Tukaram s/o Nagnath Waghmare, Age: Major, Occ: Chairman, Yogi Vighalraj Guru Maharaji Seva Sahakari Grah Nirman Sanstha, Gopal Chavadi, Nanded and Hostel owner of Rajabai and Sonabai Mulinche 2 Vastigrah, near Mama Road, Corner, Nanded.( Ori.Accd.No.1) 2. The State of Maharashtra. .. Respondents ... Mr. Rohit Sarvadnya, Advocate holding for Mr. M.V. Deshpande, Advocate for the appellants. Mr. G.G. Suryawanshi, Advocate instructed by Mr. Y.N. More, Advocate for respondent No. 1. Mr. B.V. Wagh, A.P.P. for respondent No.2. ... CORAM : P.R. BORKAR,J. DATE : 20TH NOVEMBER, 2009. ORAL JUDGMENT : . These two appeals are filed by two brothers against the same accused who is respondent No. 1 in both the appeals, being aggrieved by the orders of acquittal passed by the Chief Judicial Magistrate, Nanded on 13-09-1996 in S.C.C. No. 180/1994 and S.C.C. No. 182/1994 respectively. 2. It is the case of the appellants that respondent No. 1 runs two Ladies Hostels at 3 Nanded named "Sonamata Girls Hostel" and "Rajabai Girls Hostel". He runs one more hostel by name "Jalendarnath Boys Hostel" at Mangal Sangvi. Respondent No.1 was also promoter of "Yogi Vithalraj, Guru Maharaj Seva Sahakari Grah Nirman Sanstha" at Nanded. According to the complainant Shivaji from S.C.C. No. 182/1994 (Criminal Appeal No. 205/1999), he has provided wheat, rice, and some cash to respondent No. 1 for running his hostels and towards supply of grains and the amount paid, respondent had issued a cheque of Rs. 38,000/- on 30-01-1993 to him. As per complainant Datta in S.C.C. No. 180/1994 (Criminal Appeal No. 168/1999), he has provided jawar, wheat, rice for hostels and also paid some cash to construct houses in the Housing Society and respondent No. 1 had issued a cheque of Rs.35,000/- on 30-03-1993 to him. It is further stated that both the appellants presented their cheques in the bank for encashment on 09-07-1993. On 29-07-1993 both the cheques were returned dishonoured. 4 3. According to the appellants, both of them had issued notices on 30-07-1993, 22-08-1993, 27-09-1993, 25-10-1993 and 10-12-1993. Though said notices were issued on both addresses at Mangal Sangvi and at Nanded, all notices were returned unserved. Ultimately public notices were given in the newspaper. The appellant in Criminal Appeal No.205/1999 issued public notice on 18-02-1994 in newspaper 'Prajawani', whereas the appellant in Criminal Appeal No. 168/1999 issued public notice in newspaper 'Godatir Samachar' on 18-02-1994. Despite the said notices, no amount was paid. On the other hand, respondent No.1 had given paper publication on 20-08-1993 stating that cheques signed by him were lost. Since the cheques issued by respondent No. 1 were dishonoured, both the appellants have filed private complaints and they came to be heard by learned Chief Judicial Magistrate, Nanded and ultimately order of acquittal was passed. 5 . Learned Chief Judicial Magistrate, Nanded held that the complainant failed to discharge burden that the cheques were issued by respondent No. 1 and secondly, it is also held that the complaints were not tenable, as they are not filed within one month from the date of cause of action. 4. Heard Shri. Rohit Sarvadnya, Advocate for the appellants, Shri. G.G. Suryawanshi, Advocate for respondent No.1 and Shri. B.V. Wagh, A.P.P. for respondent No.2. Now, it is admitted position that bank memos informing that the cheques were dishonoured were dated 09-07-1993. First notice was given on 30-07-1993. Last notice was dated 10-12-1993. Since all notices were not served, public notice was given on 18-02-1994. The complaint in S.C.C. No.182/1994 (Criminal Appeal No. 205/1999) was filed on 17-03-1994 and on the same day, the complaint was also filed in S.C.C. No. 180/1994 (Criminal 6 Appeal No. 168/1999). 5. If we consider the limitation from 30-07-1993 which was the date of first notice issued by the appellants to respondent No.1, in that case, complaints lodged on 17-03-1994 would be much beyond limitation of one month. Same is the case that last notice is dated 10-12-1993. As per Section 142(b) of the Negotiable Instruments Act as it stood before Amendment Act 52 of 2002, the complaint has to be made within one month of the date on which cause of action arises under clause-(C) of the proviso to Section 138 and as per clause-(C) of proviso to Section 138, the cause of action arises at the end of 15 days from the receipt of the notice informing him about dishonour of the cheque. So, it cannot be said that complaints were filed within limitation as prescribed under Section 142(b) of the Negotiable Instruments Act. Proviso was added to clause-(b) of Section 142 in the year 2002, long before the decision of 7 the Chief Judicial Magistrate and therefore, there was no question to consider the case under the said proviso. It will have to be held that the complaints were not filed within limitation. The complainants themselves stated that none of the notice issued by them was served on respondent No. 1 and therefore, they have to give public notice. The judgment and order of the Chief Judicial Magistrate is sustainable by law insofar as limitation and maintainability of the complaints, is concerned. 6. In the facts and circumstances, the appeals are dismissed. [ P.R. BORKAR, J.] sut/NOV09/cra168.99