IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933 CRL.A.No. 165 of 2005() ----------------------- ORDER IN CRL.LP.48/2005 Dated 19/01/2005 CC.88/2000 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT/COMPLAINANT: -------------------------- RETNAKARAN, ALLAMPALLIL HOUSE, KANNAMANGALAM SOUTH, CHETTIKULANGARA. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.R.REJI SRI.SHIVE RAJA RESHMI RESPONDENTS/STATE AND ACCUSED: --------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ASHRAF, PULIMOOTTIL, PADOOTTATHIL, PATHIYOOR EAST, KEERIKKAD P.O. R1 BY PUBLIC PROSECUTOR MR.ALEX M.THOMBRA R2 BY ADV. SRI.RASHEED C.NOORANAD THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: N.K.BALAKRISHNAN, J. ---------------------------------------------------- Crl.A.No.165 of 2005 ---------------------------------------------------- Dated this the 1st day of September, 2011 Judgment The complainant is the appellant. The complaint was filed under Section 138 of the N.I.Act. The accused was acquitted by the learned Magistrate under Section 255(1) Cr.P.C. mainly on the ground that the notice under proviso (b) to Section 138 of the N.I.Act was sent beyond the period of 15 days (as the law then stood). The case of the complainant was that the accused borrowed an amount of Rs.50,000/- and to discharge that debt Ext.P1 cheque was issued. When the cheque was presented for encashment, it was dishonoured on the ground of insufficiency of funds. The cheque was drawn on Pathiyoor Service Co-operative Bank Ltd. It was presented through the complainant's Bank, namely, the Lord Krishna Bank Ltd. The factum of dishonour was intimated to the complainant as per a memo which was received by the complainant on 1.9.2001. The notice was sent on 11.9.2001. The accused received the notice on 12.9.2001. The amount was not paid. Hence, the complaint was filed. 2. The complainant got himself examined as P.W.1 and Crl.A.165/05 2 Exts.P1 to P6 were marked(in the appendix the fact that P.W.1 was examined is not seen mentioned). 3. The learned Magistrate acquitted the accused on the ground that notice under proviso (b) to Section 138 of the N.I.Act was sent beyond the period of 15 days. It is seen that specific question was put to P.W.1 as to whether he was having the document received from the Lord Krishna Bank Ltd. to show when the intimation was received. Still that memo was not produced before the court. The learned counsel for the appellant- complainant would submit that in fact the memo received from the collecting Bank- the Lord Krishna Bank Ltd. was entrusted to the complainant's counsel, but it was omitted to be produced. The copy of that memo has been produced before this court, which shows that the intimation was sent by the Lord Krishna Bank Ltd. to the complainant only on 1.9.2001. Not only that it was specifically mentioned in the statutory notice as well as in the complaint that the intimation regarding the dishonour was sent by the Lord Krishna Bank Ltd. on 1.9.2001. Since that fact was specifically mentioned in the statutory notice as well as in the complaint, no prejudice will be caused to the accused by the Crl.A.165/05 3 belated production of memo/intimation received from the Bank as otherwise justice would suffer. Therefore, in order to meet the ends of justice, the copy of the intimation received from the Bank dated 1.9.2001 is received and accepted for the purpose of disposal of this appeal. The complainant will produce the original intimation received from the Bank before the learned Magistrate. In view of what is stated above, I find that the judgment of acquittal has to be set aside and the case is to be remanded to the learned Magistrate for fresh disposal. 4. In the result, the appeal is allowed in part. The judgment of acquittal is set aside and the case is remanded to the learned Magistrate for fresh disposal. Both sides shall be given opportunity to adduce further evidence, if any. The parties will appear before the learned Magistrate on 3rd October, 2011. The learned Magistrate shall make every endeavour to dispose of the case as expeditiously as possible, at any rate, within two months thereafter. N.K.BALAKRISHNAN, JUDGE. srd Crl.A.165/05 4 Crl.A.165/05 5