IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1459 OF 2009 Between: Kaligotla Sanyasi Raju ..... Appellant/Complainant AND 1. Ilapakurthy Venkata Rao ..... Accused/Respondent 2. The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Respondents The Court made the following: JUDGMENT: The Criminal Appeal, under Section 378 (4) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 23.04.2009, in C.C.No.448 of 2007, on the file of the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, whereunder and whereby, the sole accused 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 disposal of the present criminal appeal may be stated as follows: The accused along with his son jointly borrowed Rs.3,00,000/- from the complainant on 02.01.2005 and executed a promissory note. On several demands made by the complainant, the accused gave a cheque, dated 19.01.2007, for Rs.3,00,000/- towards part payment of the said debt. When the complainant presented the cheque for collection on 01.06.2007, it was dishonoured on 02.06.2007 for insufficiency of funds. Thereupon, the complainant got issued a statutory notice on 18.06.2007 and the same was unserved. When the son of the accused came and requested the complainant to present the cheque, the complainant once again presented the cheque on 09.07.2007 and it was also dishonoured for the same reason. The complainant got issued a notice again on 16.07.2007 for which the accused gave reply with false allegations. Hence, the complaint. 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 himself as P.W.1 and got marked Exs.P1 to P9. 5. After closure of the complainant’s evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against him in the evidence of complainant. He denied the same. On behalf of the accused, D.Ws.1 and 2 were examined and got marked Exs.D1 and D2. 6. The trial Court, after considering the evidence on record, came to the conclusion that the complaint was not filed within one month from the date of return of notice; that therefore, the complaint is barred by limitation and accordingly, acquitted the accused. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the complainant proved its case beyond all reasonable doubt against the accused for the offence punishable under Section 138 of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the appellant contended that as instructed by the son of the accused, the complainant presented the cheque for the second time on 09.07.2007; that therefore, the cause of action commences from the date of issuing of second notice on 16.07.2007, and therefore, the acquittal on the ground that the complaint is barred by limitation is unsustainable and hence, he prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless the contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. To constitute an offence incorporated in the main enacting Clause of Section 138 of the Act, three conditions have to be satisfied: (i) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (ii) the payee or the holder in due course of the cheque makes a demand for the payment of the amount by giving a notice in writing within 15 days from receiving information from the bank regarding the dishonour of cheque. (iii) the drawer of the cheque fails to make payment within 15 days from the date of receipt of notice. 11. The specific case of the complainant is that when he presented the cheque on 01.06.2007, it was dishonoured on 02.06.2007 for insufficiency of funds. Then, the complainant issued a statutory legal notice under Ex.P5, dated 18.06.2007. It was returned with an endorsement that the accused retired from service. The cause of action commences from the date of refusal or return of the first notice. Therefore, the complaint has to be filed within 45 days after the return of notice. The allegation that the son of the accused requested the complainant-P.W.1 to re-present the cheque again cannot be accepted. When the cheque was once again presented on 09.07.2007, it was dishonoured for the same reason. Then the complainant-P.W.1 got issued Ex.P6-notice, dated 16.07.2007, to the accused. That was served on the accused. According to the complainant, the limitation starts from the date of service of Ex.P6-another notice, but the period of limitation cannot be counted from the date of service of second notice. The trial Court rightly acquitted the accused on the ground that the complaint is barred by limitation. The judgment under challenge does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 12. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 23.04.2009, in C.C.No.448 of 2007, on the file of the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam. _______________ (K.C. BHANU, J) Date: 5th November, 2009 KL