TaxTMI 
TaxTMI 
2021 (2) TMI 746
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....e repayment of the said amount the accused issued a cheque dated: 18-04-2009 drawn on Syndicate Bank Manvi branch Manvi for a sum of Rs. 3,00,000/-. When the cheque was presented to Bank the same was reurned dishonored with endorsement 'insufficient funds" on 04-07-2009. Then the complainant issued demand statutory legal notice on the same day. The accused did not comply the demand. Hence he lodged a complaint to take action against the accused for the offence punishable under section of 138 of NI Act. 4. The accused appeared before the trial court. 5. Thereafter words the learned J.M.F.C. recorded the Plea by putting substance of accusation to accused for the offence punishable under section 138 of NI Act. The accused pleaded not guilty and claims to be tried. 6. The complainant got examined himself as PW.1 and produced ten documents as Ex.P.1 to Ex.P.10. Accused got examined himself as DW.1. No doucments were marked for accused. 7. After hearing both the sides the learned trial Court acquitted the accused. Aggrieved by the same, this appeal is preferred on the following grounds a) that the findings of the Magistrate that two legal notices were issued by the complainant,....
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....ground that the complaint is time barred. In support of his contention the learned counsel relied upon the following decisions: 1) AIR 2017 Supreme Court 1681 (N.Parameshwaran Unni Vs G.Kannan 2) AIR 1999 Supreme Court 1952 :1999 AIR SCW 1637 NEPC Micon Ltd and others V Magma Leasing Ltd. 3) AIR 2019 Supreme Court 502: AIRONLINE 2019 SC 20 M/s Sicagen India Ltd. Vs Mahindra Vadineni 10. Against this Sri.Basavaraj R.Math learned counsel for the respondent/accused contended that, the complaint is time barred as statutory notice was issued on 03-07-2009. The complainant has also admitted in his evidence that he has issued two notices one on 03- 07-2009 the other on 03-08-2009. The learned counsel further argued that, when first notice is issued the cause of action arose and the complaint filed after 30 days becomes time barred. The date on the notice 03- 07-2009 and the date in handwriting on Ex.P.5 cannot be said as typing mistake or due to oversight or human error. The learned counsel further argued that there is no evidence that accused was doing any rice business and there is no evidence that, only on a phone call 100 rice bags were sent. The driver of the Lorry who recei....
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....oints is as under for the reasons given below. 14. The undisputed contentions in the case are that, the accused admitted his signature on cheque and issuance of cheque. The contention of the accused is that, he has issued that cheque in respect of civil dispute. 15. The learned Magistrate has though framed a point for consideration as to whether the cheque was issued towards the balance due and same was dishonored on presentation, but the learned Magistrate acquitted the accused holding that, the subsequent notice dated: 3-8-2009 is barred by limitation. Though the accused has also led defense evidence but without considering those aspect and without considering as to whether the presumption arising under section 139 of the Negotiable Instrument Act was rebutted or not, Whether the accused defense evidence probablise his defense or not has acquitted the accused only on technical ground regarding limitation. The learned Judge of trial court simply states that, in Ex.P.1 there is no mention in respect of entire amount due by the accused or whether the accused has taken delivery of rice on credit basis it creates clouds over genuinity of Ex.P.1. The learned trial court strangely obs....
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.... the Syndicate Bank slip at Ex.P.3 which indicates the reason insufficient funds. In Ex.P.5 he has mentioned the same. Ex.P.6 & Ex.P.7 postal receipts are also dated: 03-08-2009 the postal seal on Ex.P.8 is also 03-08-2009. Ex.P.9 and Ex.P.10 are produced by the complainant himself and those postal covers which are returned with endorsement as refused were opened before the trial court while recording his sworn statement on 26-03-2011 and the said covers are marked as Ex.P.9 and Ex.P.10. the respective postal covers are marked as Ex.P.9(a) and Ex.P.10(a). It is clearly mentioned in Ex.P.9 notice and Ex.P.10 contents of the notice that, dishonoured cheque memo and intimation is dated: 04-07-2009. Ex.P.9(a) and Ex.P.10(a) the postal receipts also indicate that those notices were issued through RPAD on 03-08-2009. The post office Manvi round seal is also there as 03-08- 2009. The postman shara as refused is also dated: 04-08-2009. Therefore, simply because on Ex.P.9 and Ex.P.10 the advocate notice on the top the date is typed as 03-07-2009 instead of 03-08-2009 it cannot be presumed or held that, the said notices were issued on 03-07-2009 itself. On the other hand the contents of the ....