Judgment:
Jawad Rahim, J.
1. The complainant is in appeal against the judgment in PCR. No. 29539/00 dated 28.12.2002 on the file of Addl. Chief Metropolitan Magistrate, Bangalore, rejecting the complaint, thereby acquitting the accused of the charge for the offence under Section 128, Negotiable Instruments Act.
2. The appeal is pending admission from the year 2003 after notice to the respondent.
3. Heard.
4. Considering the grounds urged in the appeal against the impugned order, I am satisfied the matter requires reconsideration. Leave is granted and the appeal is admitted.
5. As it is seen, since the issue that arises for consideration falls in a narrow compass, viz., the complaint being presented beyond the period of limitation prescribed, I have taken it up for final heating.
6. The contextual facts as manifest from the records reveal:
a) Complainant sought prosecution of the respondent for the offence under Section 138, N.I. Act on the premises that it had availed a loan of Rs. 6.80,000/- for business purpose, promising to repay on demand. Despite request of the complainant respondent failed to keep its promise, consequent to which the said sum remained unpaid. On further demand, respondent issued the Impugned cheque dated 18.2.1999 in discharge of the said liability. The cheque when presented to the bank, was dishonoured.
b) Complainant re-presented the cheque through her banker, but the result was the same. It necessitated issuance of statutory notice as envisaged under Clause (b) of Section 138, N.I. Act on 4.9.1999. Accused received it and sent a reply dated 9.9.1999, denying its liability. Since there was no compliance to the demand in the statutory notice, the complainant availed cause of action as indicated under Section 142, N.I. Act and presented the complaint under Section 200, Cr.P.C. on 16.10.1993.
c) The jurisdictional magistrate took cognizance and posted the matter for further proceedings. After recording the sworn statement of the complainant, presence of the accused was secured who, on entering appearance, put up defense of denial simpllcitor, necessitating trial.
d) During trial, complainant tendered evidence as PW1 and placed reliance on 9 documents, while the accused also tendered evidence as DW1 and examined 2 witnesses. It relied on 11 documents.
e) The learned trial judge though noticed the ocular and documentary evidence, established Incriminating aspects against the accused for the offence charged, thought fit to ignore that material evidence, and decided the issue regarding limitation. In this regard, the learned trial judge, though no such objection was raised by the accused, noticed that the Impugned cheque was dated 18.2.1999 and was presented twice; complainant being unsuccessful in realising the amount covered under it, based on the bank endorsement dated 11.8.1999, issued notice as contemplated under Clause (b) of Section 138, N.I. Act calling upon the accused to make good the amount covered under the cheque through notice dated 25.8.1999 vide Ex.P4. It was duly served on the accused on 4.9.1999 and reply to It was sent on 9.9.1999.
f) The learned trial judge taking note of the chronology of events, records the finding that notice was issued within the period stipulated and was lawful. However, the learned trial judge computes the period of limitation to file the complaint from 21.9.1999 which also is not in error. However, the learned judge fixed cut-off date for filing the complaint as 20.10.1999, that also cannot be faulted. The only apparent error committed by the learned judge is that the complaint was filed on 6.11.1999 and not within 20.10.1999. Hence, he concludes that the complaint was beyond the period of limitation. Such observation is totally against facts and records.
7. Learned Counsel for the appellant rightly drew my attention to the complaint, i.e. PCR presented by the complainant on 16.10.1999 and also the register maintained by the office of Chief Metropolitan Magistrate which demonstratively establishes that the complaint was filed in office and registered as PCR. It finds entry at serial No. 851 of the register and Indicates the date of further proceedings as 27.11.1999. Besides, lower court records which are summoned, bear testimony to the fact that office has made a note of the complaint having been presented on 16.10.1999, cognizance taken thereon and further proceedings shown as 27.11.1999. Therefore, the observation of the learned judge that the complaint was presented on 6.11.1999 finds no support from the official records. It appears the learned judge mislead himself in belief that the complaint was filed on 6.11.1999, perhaps because there is an endorsement on the complaint purported to be that of the Presiding Officer signed as 6.11.1999. That entry when compared with other official records has to be read as Incorrect. The relevant material which the trial court should have examined is undoubtedly the register maintained in the court, viz., complaint, order sheet and registers. Since all these 3 documents in original are available, on its examination I am satisfied they are against the observation made by the learned judge, and it is obvious that the said documents have not been verified before reaching such conclusion.
8. Since the (earned trial judge has computed the period of limitation, the petition ought to have been filed before 20.10.1999. Since the complaint is filed on 16.10.1999 and cognizance taken on 28.10.1999, it has to be held that it is filed within the period of limitation prescribed. The learned trial judge has dismissed the complaint and passed the order under Section 255(1), Cr.P.C. Undoubtedly, it is an order of acquittal and not mere dismissal of the petition simiplicitor under Section 203, Cr.P.C. In these circumstances, the appeal merits to be allowed. I do so.
9. The appellant shall succeed In her legal pursuit. The order Impugned is, therefore, set aside. Since the learned judge has recorded he is not inclined to consider the case on merits as the period of limitation was against the complainant, the only course open is to remand the matter, directing the trial court to consider the evidence on record and pass appropriate orders in accordance with law. Since evidence Is complete, there is no need for recording further evidence. The case shall be proceeded from the stage of arguments and disposed of on merits, keeping in mind the observation made by this Court. The trial court shall expedite the proceedings.
Office to return lower court records and PCR registers to the trial court forthwith.
Order on for Being Spoken to
1. This matter was heard on merits and disposed of on 28-05-2009. After the judgment was leased the memo is moved seeking to post it 'for being spoken to Accordingly, It is posted today.
2. The learned Counsel submits that computation of period of limitation as done by the trial court and by this Court is incorrect. He wants to compute the period of limitation for filing the complaint from 04-09-1999, the date of service of notice. According to him the complaint is barred by 10 days.
3. The learned Counsel is not in a position to dispute the accused has received notice on 04-09-1999 and had to comply with the demands within fifteen days, which falls on 19-09-1999. The Complainant had 30 days therefrom to file complaint, i.e., within 19-10-1999. After exluding one day period of limitation ends on 20-10-1999.
The complaint is filed on 16-10-1999, which is dealt in detail in the final order. Hence, plea to the contrary is unacceptable.
4. Accordingly, I find no reason to reconsider any of the observations made in the order dated 28-05-2009. It also needs to be observed that once the appeal/revision or petition Is disposed of finally under Code of Criminal Procedure, there is no scope for either review or revision, In view of restriction in Section 362 Cr.P.C. Hence, the order passed on 28-05-2009 needs no further modification and It is confirmed.