The petitioner herein seeks leave of this Court to impugn the judgment dated 20.9.2014 of the Court of IInd Additional Sessions Judge, Ernakulam, in Crl.Appeal No.258/2014, whereby the conviction rendered by the jurisdictional Magistrate in C.C.No. 2509/2010 against the accused in a case involving offence under Sec. 138 of the Negotiable Instruments Act, has been reversed. As per the proviso (b) to Sec. 138 of the Negotiable Instruments Act, one of the essential pre-requisites for invoking the criminal prosecution for offence under Sec. 138 of the Negotiable Instruments Act is that the payee or the holder in due course of the cheque as the case may be makes a demand for payment of the amount of money in question by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. In the instant case, the case of the complainant is that he got knowledge about the dishonour of the cheque from his bank on 23.7.2007. Both the trial court as well as the lower appellate court has concurrently found that the complainant would have received the intimation regarding the dishonour of the cheque, in all probability on 22.7.2007. It is the version of the complainant (PW1) that thereafter notice as contemplated in clause (b) of proviso to Sec. 138 was sent by him on 20.8.2007 (Ext.P-3). It is the admitted case that the above said Ext.P-4 notice was sent by the counsel for the complainant and not by the complainant. It is also the common ground of both parties that Ext.P-3 notice dated 20.8.2007 was postally served on the accused only on 28.8.2007 as evidenced by Ext.P-4 acknowledgement card produced by the complainant. The complainant admittedly has not produced any evidence before the court below to show the exact date on which he has postally sent Ext.P-4 notice dated 20.8.2007 to the accused. Ext.P-4 is received only on 28.8.2007. A dispute was raised by the accused that in fact Ext.P-4 notice dated 20.8.2007 was not actually sent on 20.8.2007, but only subsequently and that this is probabalised by the fact that Ext.P-4 was received by the accused only on 28.8.2007 as evidenced by Ext.P-4 produced by none other than the complainant himself. The complainant has sent Ext.P-4 from Thammanam post office in Ernakulam, to the accused whose postal address is within the Thaikattukara post office, Aluva. It is the bounden duty of the complainant to prove beyond reasonable doubt that Ext.P4 notice has actually been sent by him within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, as mandated in proviso (b) to Sec. 138 of the Negotiable Instruments Act. Since no evidence in this regard was forthcoming from the complainant on the above said disputed issue raised by the accused, the lower appellate court, viz., the Sessions Court concerned, came to the considered conclusion that on an issue like this, the best evidence is the postal receipt showing the date of sending of Ext.P-4 notice, which should be available with the complainant and that since such best evidence was not produced, the non-production of the same is fatal to the prosecution. Since no other reliable evidence in regard to this fact has been produced by the complainant, the Sessions Court came to the conclusion that the prosecution has failed to prove that Ext.P-4 notice has been sent within the above said 30 days time limit as mandated in proviso (b) to Sec. 138 of the Negotiable Instruments Act. It is noted that the petitioner has not produced any evidence showing the postal receipt of sending Ext.P-4 notice to the accused. Neither has he sought to adduce any evidence from the postal authorities concerned regarding this crucial issue. Since neither the best evidence nor any other evidence is forthcoming in this case on this vital issue, the considered conclusion reached by the lower appellate court in the impugned judgment is fully reasonable and legally correct. Therefore, the impugned judgment of the lower appellate court in reversing the conviction rendered by the trial court, cannot be faulted in any view of the matter. Accordingly, there is no point in prosecuting the proposed appeal and therefore, the application seeking grant of leave to impugn the judgment of the lower appellate court, is dismissed. Accordingly, the Crl.L.P. is dismissed. Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge