IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 CRL.A.No. 1408 of 2003() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.278/2003 Dated 06/08/2003 CC.3/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT/COMPLAINANT: ---------------------------------------- GIRISH C. JOSEPH, S/O. JOSEPH CHIRAMMEL HOUE, THRISSUR TALUK. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENTS/ACCUSED & STATE: --------------------------------------------------- 1. SUNNY MANUEL, S/O. MANUEL KAINIKKAL HOUSE, MANNUTHY, THRISSUR. ADV. SRI.C.A.CHACKO FOR R1 R2 BY PUBLIC PROSECUTOR SHRI.P.R. JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON 10/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1408 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C No. 3 of 2001 on the file of Judicial First Class Magistrate Court, Thrissur. The first respondent herein is the accused in that case, which was filed by the complainant alleging commission of the offence under Section 138 of N.I. Act. 2. The case of the complainant is briefly as follows. The accused borrowed a sum of Rs.2,05,000/- from the complainant and in discharge of the said amount, he issued Ext.P1 cheque. When the cheque was presented for collection, the same was dishonoured for want of sufficient funds in the account of the accused. Therefore the complainant issued a lawyer notice to the accused intimating the dishonour of the cheque and demanding the Crl.A. No. 1408 of 2003 2 amount. Inspite of the said notice, the accused did not repay any amount. Hence the complaint. 3. In the Magistrate Court, on the side of the complainant PW1 was examined and Exts.P1 to P5 were marked. No evidence was adduced from the defence side. The learned Magistrate, on considering the evidence, found that the complainant failed to prove that Ext.P1 cheque was issued in discharge of a legally enforceable debt and that the complaint was not filed within the time prescribed under Section 142(b) of the N.I. Act. Hence the accused was found not guilty of the offence under Section 138 of the N.I. Act and he was acquitted under Section 255(1) Cr.P.C. Against that judgment of acquittal, the complainant filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Crl.A. No. 1408 of 2003 3 5. The learned counsel for the appellant submitted that the complainant has proved all the necessary ingredients of the offence under Section 138 of the N.I. Act and as such the the learned Magistrate is not justified in acquitting the accused. The learned counsel for the appellant further submitted that the complaint was filed within the prescribed time limit. The learned counsel for the first respondent supported the judgment of the court below. 6. When the complainant was examined as PW1, he stated that Ext.P1 cheque was presented on 31.1.2000. Ext.P2 is the memo dt.31.1.2000 stating that Ext.P1 cheque was dishonoured on 31.1.2000. PW1 sent Ext.P3 statutory notice on 7.2.2000. In cross examination PW1 admits that the accused received the notice on 14.2.2000. The complaint was filed before the Court on 4.4.2000. As stated by the learned Magistrate, the cause of action would arise on 15th day of receipt of notice by the accused and the complaint has to be filed within one month thereafter. 15 days time would expire on 29.2.2000. Crl.A. No. 1408 of 2003 4 The complaint has to be filed within one month i.e. within 29.3.2000. But it was actually filed on 4.4.2000, which is not within the prescribed time provided under Section 142(b) of the N.I. Act. Therefore, as found by the learned Magistrate, there cannot be a valid prosecution of the accused. 7. According to the complainant, the accused borrowed Rs.2,05,000/- from him for starting a garment business in October, 1999 and the accused issued Ext.P1 cheque dt. 27.1.2000 for that sum. When the complainant was examined as PW1, he stated that during that time he was having a monthly salary of Rs.6,000/- When PW1 was asked about his source of income, he stated that he collected that amount by borrowing from other persons. But there is no evidence to show that the complainant had so much amount to lend the same to the accused. The mere fact that the accused admitted his signature in Ext.P2 cheque, it cannot be said that the accused admitted the execution of that cheque. As there is no reliable evidence to show that the complainant has the financial capacity to pay Rs.2,05,000/-, Crl.A. No. 1408 of 2003 5 I am of the view that the learned Magistrate is perfectly justified in finding that the complainant failed to prove that Ext.P1 cheque was issued in discharge of a legally enforceable liability. 8. Accordingly this appeal is dismissed, as it is without any merit. (M.L. JOSEPH FRANCIS) Judge tm