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2004 DIGILAW 491 (RAJ)

Ramchand Banarsi Das v. Bhanwar Lal

2004-04-02

H.R.PANWAR

body2004
JUDGMENT 1. - Heard learned counsel for the appellant and perused the order of acquittal dated 12.12.2003 passed by Additional Chief Judicial Magistrate, Sri Ganganagar. 2. The Trial Court acquitted the accused respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') on the ground that cheque exhibit-p/2 and p/3 were dishonoured and returned unpaid by the Bank vide return memo Exhibits-p/4 dated 20th August, 1996 which was received by the appellant on 20th August, 1996. A notice Exhibit P/5 was sent by the appellant through his counsel on 17.9.1996 much after the expiry of period of 15 days as envisaged in proviso (b) to Section 138 of the Act making a demand for the payment of the said cheques amount of money. 3. I have carefully gone through the record of the case. 4. In complaint filed by the appellant, it has been stated that return memo Exhibit-P/4 dated 20th August, 1996 was received by the appellant firm on 30th September, 1996 and on the basis of this date it was stated that the complaint is within the period of limitation. Complainant Purshottam Das appeared before the Trial Court as PW 1 and produced the Bank Return Memo Exhibit-P/4 dated 20th August, 1996. The complainant has not produced any document to substantiate that the said memo dated 20th August, 1996 was received by him on 30th September, 1996 almost after more than 40 days from the date of issue. In notice Exhibit-P/5 making a demand for the payment of the cheques amount of the money sent to the accused respondent on 17.9.1996, it was stated that return memo Exhibit-P/4 dated 20th August, 1996 was received by the complainant on 3rd September, 1996. The complainant failed to produce any document showing receipt of return memo Exhibit-P/4 from the Bank either on 3rd September, 1996 or on 30th September, 1996. At any rate the Trial Court in absence of any convincing and reliable evidence came to the conclusion that the complainant failed to make the demand for payment of the said amount of the money of the cheque in question by giving a notice in writing to the drawer of the cheques, within 15 days of the receipt of information by him from the Bank regarding return of the cheques as unpaid. The notice Exhibit-P/5 was admittedly given in writing to the respondent, the drawer of the cheques on 17.9.1996 much after expiry of the period of 15 days. 5. The word "within 15 days" as envisaged in proviso (b) to Section 138 of the Act emphasises that notice is mandatorily required to be given in writing to the drawer of the cheque within 15 days of the receipt of the information by the complainant from the bank regarding the return of the cheque as unpaid. Obviously, in the instant case, the notice Exhibit-P/5 was sent after expiry of period of 15 days. 6. In the circumstances, therefore, I do not find any error in the order of the Trial Court. Hence, it is not a fit case to grant leave. Hence, leave is refused. The application seeking leave to appeal to this Court is, therefore, rejected.Appeal rejected. *******