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2010 DIGILAW 1074 (PNJ)

Pardeep Kumar v. Manbir Singh

2010-03-04

RAJAN GUPTA

body2010
Judgment Rajan Gupta, J. 1 The present appeal has been preferred by the complainant aggrieved by decision of the trial court acquitting the respondent No. 1 of charge under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act"). 2 Brief factual background of the case is that a cheque dated 30th December, 1996 for Rs. 50,000/- was issued by the respondent No. 1 to be credited in the account of the petitioner. The cheque was drawn on Oriental Bank of Commerce, Gurdaspur. The cheque in question was presented by the complainant to his banker i.e. Punjab National Bank, Aulakh on 5th May, 1997. On the same day i.e. 5th May, 1997, the cheque was dishonoured by the Oriental Bank of Commerce, Gurdaspur due to insufficient funds in the account of the accused (respondent No. 1) and memo to this effect was also served by the bank to the appellant along with the cheque. Notice Ex.CW4 was served upon the respondent by registered post through his counsel by the appellant on 20th May, 1997 and he retained copy of notice and postal receipt with him. However, the accused failed to make payment of the amount. Resultantly, the present complaint was preferred by the petitioner before the court of Chief Judicial Magistrate, Gurdaspur. 3 In his preliminary evidence, the complainant appeared himself as PW1 and examined Puran Chand, a clerk in Oriental Bank of Commerce as PW2. On the basis of preliminary evidence,,the accused was summoned to face trial under Section 138 of the Act vide order dated 25th September, 1997. 4 During the trial of the complaint, the complainant himself appeared as CW1 in order to prove the cheque, which was exhibited as Ex. CW-1. Receipt issued by the bank was exhibited on record as Ex. CW-2 and memo, whereby cheque was dishonoured, as Ex. CW-3. the notice issued by the complainant was also adduced in evidence and came on record as Ex. CW-4 and postal receipt in respect of the notice was exhibited as Ex. C W- 5 The complainant examined two witnesses in support of his case, namely, Puran Chand, clerk-cum-cashier Oriental Bank of Commerce, Gurdaspur and Prem Pal Singh, also a Clerk-cum- Cashier, Incharge, Punjab National Bank, Aulakh. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. He pleaded not guilty and claimed trial. C W- 5 The complainant examined two witnesses in support of his case, namely, Puran Chand, clerk-cum-cashier Oriental Bank of Commerce, Gurdaspur and Prem Pal Singh, also a Clerk-cum- Cashier, Incharge, Punjab National Bank, Aulakh. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. He pleaded not guilty and claimed trial. No evidence was led by the accused in defence. After considering the evidence adduced by the complainant, the trial court came to the conclusion that notice had not been served by the complainant within the period prescribed in Section 138 (b) of the Act and thus acquitted him of the charge. Learned counsel for the appellant has argued that findings arrived at by the trial court are palpably wrong and against the evidence on record. According to him, memo Ex. CW3 was received by the complainant on 6.5.1997 and notice was issued on 21st May, 1997, thus, the same was issued within 15 days, the period prescribed under Section 138 (b) of the Act. Learned counsel has also referred to a certificate, Annexure P-l, placed on record in support of his contention that memo dishonouring the cheque was received by the complainant not on 5th May, 1997, but later. He, therefore, submits that accused could not have been acquitted on the technical ground that notice was not served within the period prescribed. 6 Learned counsel for the respondent No. 1 has, however, submitted that memo dishonouring the cheque was received by the petitioner by hand on the same day i.e. 5th May, 1997 and thus, notice was not sent by the complainant within 15 days of receipt of information regarding dishonour of cheque. He further submits that neither in the complaint nor in the preliminary evidence, the complainant mentioned that memo regarding dishonour of cheque was received by him on a date beyond 5th May, 1997. He has further pointed out that when the complainant stepped into the witness box as CW1 during trial, in cross- examination he admitted that notice had been sent by him beyond a period of 15 days. 7 I have heard learned counsel for the parties and perused the record received from the trial court. 8 It is evident that cheque Ex.CWl dated 30th December, 1996 was presented by the complainant to his banker (Punjab National Bank) on 5th May, 1997. 7 I have heard learned counsel for the parties and perused the record received from the trial court. 8 It is evident that cheque Ex.CWl dated 30th December, 1996 was presented by the complainant to his banker (Punjab National Bank) on 5th May, 1997. The same was returned on the same day due to insufficient funds in the account vide memo Ex. CW3. It was accompanied by a voucher Ex.CW2. There is nothing on record to show that memo Ex.CW3 and voucher Ex.CW2 were not received by the complainant on the same day i.e. 5th May, 1997. Even in the complaint preferred by the complainant, it has nowhere been stated that memo Ex.CW2 was received by him on 6th May, 1997. Though the complainant when stepped into the witness-box, stated that memo Ex.CW-3 was received by him on the next day of presentation of cheque i.e. 6th May, 1997, in his cross-examination he admitted that notice was sent after a period of 15 days. It is not disputed that notice was issued on 21st May, 1997. This apart, no documentary evidence has been produced by the complainant in support of his stand that memo Ex. CW-3 was received by him on 6th May, 1997. A certificate, Annexure P-l has, however, been annexed with this appeal, according to which a memo was returned to the depositor on 9th May, 1997. This court need not examine the said certificate as the same was never adduced in evidence before the trial court and thus, not a part of the evidence. In any case, the same does not give the date of return of memo as 6th May, 1997 but as 9th May, 1997. 9 I am, thus, of the considered view that the complainant failed to serve legal notice within the period prescribed under proviso (b) to Section 138 of the Act. The trial court, thus, correctly arrived at the finding that since the complainant had failed to meet the requirement of Section 138 of the Act, the accused deserved to be acquitted of the offence alleged. 10 I, thus, find no ground to interfere with the findings arrived at by the trial court. The impugned judgment is hereby upheld and appeal is dismissed.