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TMI Blog2010 (3) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 2003 and towards discharge of the said hand loan, he issued the cheque bearing No. 238109 dated 15.11.2003, drawn on Canara Bank, Kolar and when the said cheque was presented for encashment, the same came to be returned unpaid with Banker's endorsement funds insufficient and in spite of service of legal notice to the respondent -accused on 10.12.2003 as required by law, respondent -accused failed to pay the amount covered under the cheques as such he has committed offence punishable under Section 138 of the N.I. Act. 3. The learned Magistrate before whom the complaint was presented on 9.2.2004, took cognizance of the offence by order dated 9.2.2004 and after recording the sworn statement of the complainant directed registration of the criminal case as per his order dated 11.2.2004 and summons were ordered to be issued to the respondent - accused. Upon service of summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. During the trial, the complainant examined himself as PW. 1 and was cross-examined. He also got marked Exs.P.1 to P.13. 4. The respondent - accused during his exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , at the time of filing the complaint, and since, the learned Magistrate had not exercised the discretion to condone the delay, the trial is vitiated as such the judgment of conviction recorded by the learned Magistrate is perverse and illegal. The Appellate Court also noticed that, from the documentary evidence produced by the accused it is established that he was not residing in the address mentioned in the notice and therefore there was no proper service of notice. In that view of the matter, the learned Judge of the Fast Track Court allowed the appeal, set aside the judgment of conviction recorded by the learned Magistrate and consequently acquitted the accused. As against this judgment of the learned Judge of the Fast Track Court, the complainant has presented this appeal. Upon service of notice of this appeal, the respondent has appeared through his counsel. 7. I have heard Smt. Clare George, learned Counsel appearing for the appellant and Sri A.C. Patil, learned Counsel appearing for the respondent. Perused the judgments under appeal. 8. It is the submission of the learned Counsel for the appellant that the complainant had no knowledge of service of notice on the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted to run from 2.1.2004 i.e., after expiry of 15 days from 18.12.2003 and therefore, the complaint filed on 9.2.2004 was clearly barred by time and unless the Magistrate had exercised the discretionary jurisdiction as per proviso to Clause (b) to Section 142 of the N.I. Act, he had no jurisdiction to take cognizance of the offence alleged in the complaint and he had no jurisdiction to condone the said delay at the fag end of the trial. It is also his submission that the defence put forth by the accused has been rightly accepted by the learned Sessions Judge and therefore, the judgment of the learned Sessions Judge do not suffer from any illegality or irregularity calling for interference by this Court. 10. I have bestowed my serious considerations to the submissions made by the learned Counsel on both sides. Perused the judgments under appeal. 11. Even as per the case of the complainant, the accused issued the cheque on 15.11.2003 and on the same day, the cheque was presented for encashment through the Banker of the complainant. According to the case of the complainant he received the information from his banker about the return of the cheque unpaid on 25.11.2003 and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce report, and make himself aware of the facts to find out as to whether a prima facie case is made out for taking note of the offence alleged therein. The cause of action as per Clause (c) of proviso to Section 138 of the Act would start to run from the expiry of 15 days of the date of the receipt of the notice by the drawer of the cheque, upon the failure on the part of the drawer of the cheque to pay the amount demanded in the notice, within 15 days of the receipt of such notice. Reading of Clause (c) of Section 138 and Clause (b) of Section 142 of the Act together clearly indicates that the cause of action for filing the complaint commences from the date of expiry of 15 days of the date on which the drawer of the cheque received or deemed to have received the notice. The said proviso does not speak of the knowledge of the complainant about the date on which the drawer of the cheque had received the notice. In the case on hand even as per the contents of Ex.P. 13 on which the complainant placed strong reliance, the notice said to have been issued by the complainant has been served on the accused on 18.12.2003. From that day, the accused had 15 days time to pay the amount. The pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Magistrate was not justified in convicting the accused and therefore the judgment of the learned Sessions Judge acquitting the accused is in accordance with law. No illegality or irregularity is pointed out in the said judgment. As the order condoning the delay was passed on 10.4.2006 on an Interlocutory Application, in view of the bar created under Sub-section (2) of Section 397 Cr.P.C., the respondent could not have questioned the correctness of the said order in a revision. Therefore, the respondent - accused was well within his right in raising the validity of the said order dated 10.4.2006, as a ground of appeal filed before the learned Sessions Judge, The learned Magistrate proceeded to pass the judgment on merits on 17.5.2006 within about five weeks from the date of condoning the delay. Therefore, there was no opportunity for the respondent accused oven to question the said order. Under these circumstances, the learned Sessions Judge is justified, in interfering with the judgment of the learned Magistrate. The judgment of the learned Magistrate is perverse, illegal and contrary to the well settled principles of law. Therefore, the learned Sessions Judge has rightly set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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