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TMI Blog2023 (4) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... 995. The accused tried to bring on record about relationship of the Complainant and the bank witness. There is nothing wrong if they are knowing each other because Complainant is their customer. It has furthermore testified during cross-examination that the both are resident of the same village. Learned Advocate for the Respondent relied upon the judgment in the case of Kamlesh Kumar Vs. State of Bihar and Anr. [[ 2014 (1) TMI 736 - SUPREME COURT] ]. Learned Advocate Shri Kharkar for the Appellant tried to differentiate facts of that case and the present facts. In that case cheque was presented on two occasions and notice was issued from the date of knowledge of the dishonour and it was issued in pursuance of the second presentment. On 10/11/2008, when cheque was presented, the Complainant got knowledge of dishonour on account of un-availability of the sufficient balance. Whereas notice was issued on 17/12/2008 that is after the period of 30 days. (at that time the period is about 30 days) and hence it was held beyond the prescribed period. Complainant also filed an affidavit thereby stating that bank has issued memo and it was received on 17/11/2008. He wants to plead that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of the Negotiable Instruments Act. As everyone knows the issue about existence of legally recoverable debt or liability, reason for dishonour, issuing statutory notice in time and filing the complaint in time are the necessary ingredients. 4. With the assistance of both the sides, when I have read the judgment, learned Magistrate has acquitted the Respondent No. 1 mainly for the reason that the mandatory notice was not issued in time and that is why there is a non-compliance . So if those findings are set aside, then the question will crop up whether other ingredients are proved or not. As I have said in the beginning there is no merit in the appeal, I have not gone into correctness of the findings on the other issue. 5. So the issue involved in this appeal is whether trial magistrate was correct in observing that statutory notice was not given in time from the date of information as to dishonour? 6. There are few dates which are relevant. That is to say date of deposit of cheque and date of returning the cheque/date of cheque return memo. During oral and documentary evidence following dates are relevant :- Date of deposit 1) 06/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as brought on record. It is as follows :- Bank Witness (i) Cheque at Exh. 24 bears signature of the accused. (ii) Cheque is deposited in their bank on 11/11/1994. (iii) Cheque return memo is of 24/01/1995 Exh. 37. (iv) Reason for dishonour is refer to drawer . It is meant as insufficient balance as explained by the witness. v) He has produced extracts of the account in the name of the accused at Exh. 38. 9. Learned Advocate Dr. Warunjikar emphasized on certain answers given by him during cross-examination. The relevant are as follows:- a) Practice of taking entries in the register as soon as cheque is deposited. b) Service charges are to be recovered from the customers, if the cheque is returned. c) Extract of the account shows that cheque was returned on 14/11/1994. d) Cheque does not bear the date of its deposit. e) Once the cheque is returned, entry is taken in the register but he has not produced the said register (so as to know the date of the deposit of the cheque and date of return of the cheque) f) He does not know the name/author of the account extract as Exh. 38 that is who from his bank has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Warunjikar gave an example of the present day practice of getting SMS from the bank about dishonour of the cheque and according to him if we accept of such intimation of the dishnour, then the payee will be jeopardized. Because for want of memo, he is handicapped in knowing the reason for dishnour. 17. Though initially, he stressed on the provisions of Section 146 of the Negotiable Instruments Act, later on he did not stick to the said submission. If bank slip or memo having official mark is produced, presumption arises about dishonour of the cheque. It is rebuttable presumption. This provision was not there when the case was tried. It is by way of amendment. 18. If we consider the 24/01/1995 as the relevant date, the notice given at Exh. 25 on 03/02/1995 is within the period of 15 days from the 24/01/1995. That date is reflected in account statement. It is deposed by the bank witness. The bank witness was also cross-examined on behalf of the Complainant. He admits that the customers need to be informed about dishonour of the cheque immediately. If there is debit entry on 14/11/1994, certainly it can be said that there is enormous delay in informing the complainant on 24/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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