K.N. Ramachandra vs K. Mahesh @ Ramu

N. Ananda, J.—The appellant was the complainant (hereinafter referred to as ''the complainant'') before the court below. He had initiated a complaint u/s 200 Cr.P.C. alleging an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act'') against respondent (hereinafter referred to as ''the accused''). Heard the learned counsel for parties.

It was contended by complainant that accused had issued a cheque for valid consideration, which accused had received from complainant. The accused had drawn cheque bearing No. 071304 dated 18.09.2002 for a sum of Rs. 2,00,000/- in favour of complainant. The aforestated cheque was drawn on District Co-operative Central Bank Limited, Mudigere Branch, Mudigere. The complainant presented cheque through his banker Indian Overseas Bank, Chikmagalur on 19.09.2002. The cheque was dishonoured with an endorsement "funds insufficient" and "payment stopped by the drawer". Thereafter, complainant caused legal notice on 18.10.2002. The learned trial Judge has held that notice u/s 138(c) of the Act was not issued within a period of 15 days from the date of receipt of intimation of dishonour of cheque. Thus, dismissed the complaint. The learned trial Judge has held that cheque was presented within period of validation and cheque was dated 18.09.2002. The learned trial Judge has not recorded findings on other ingredients of an offence punishable u/s 138 of the Act.

It is needless to state that in order to prove an offence punishable u/s 138 of the Act, complainant has to prove the following:--..

(i) there was existence of legally recoverable debt/liability.

(ii) The cheque was issued to discharge such legally recoverable debt/liability.

(iii) The cheque was presented with banker of complainant during period of its validity.

(iv) The complainant had caused a legal notice within statutory period from the date of intimation of dishonour of cheque from the date of intimation sent by banker of complainant.

(v) The accused had failed to make payment of said money (amount covered under cheque) within 15 days from the date of notice.

(vi) The complainant has filed the complaint within 30 days from the date of receipt of notice by accused.

The trial court has to record findings on all the aspects so that such findings would be available to appellate court to test the veracity of judgment of trial court. The trial court cannot dismiss the complaint only on the ground that one of the ingredients is not proved by complainant. In the circumstances, impugned judgment cannot be sustained. In the result, I pass the following:- ORDER

The appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned trial Judge for reconsideration in the light of the observations made herein and in accordance with law. Both parties are at liberty to adduce further evidence.