IMPORTANT POINT
So far as the question of service of notice in terms of proviso appended to section 138 of Act is concerned, same is essentially a question of fact.

ORDER

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with the judgment and order dated 21.8.2006 passed by the learned Single Judge of the High court of Karnataka at Bangalore in Criminal Revision No. 1020/2006, whereby and whereunder the revision application filed by him from judgment dated 14.10.2006 passed by the Vith Fast Track Court at Bangalore in Criminal Appeal No. 4050/2005 affirming the judgment and order dated 22.10.2005 passed by the XVIth Additional Chief Metropolitan Magistrate, Bangalore in CC No. 3400/2002, was dismissed.

3. Respondent allegedly gave a hand loan of Rs. 1,20,000/- to the appellant on 4.10.2000. In discharge of the said debt the appellant is said to have issued two cheques for Rs. 60,000/- each on 26.4.2001 and 5.4.2001. The said cheques were presented before the bank on July 10, 2001 and were returned dishonoured on the ground that sufficient fund therefore was not available.

4. Upon service of notice upon the respondent, a criminal complaint was filed. By an order dated 20th November, 2002 cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881, was taken by the learned Magistrate.

5. Before the learned Trial Judge, the parties examined themselves. One of the contentions raised by the appellant was that there did not exist any relationship of creditor and debtor between the parties. It was furthermore urged that notice in terms of the proviso appended to Section 138 of the Negotiable Instruments Act was not served upon the appellant.

6. Learned Additional Metropolitan Magistrate upon considering the materials brought on record by the parties, including the report of a hand writing expert, opined that the signatures appearing on Exhibit P-11 (Postal Acknowledgment) was not that of the appellant. The signature of the appellant on the said Postal Acknowledgment was compared with his signatures on the cheque. Respondent, however, examined the postal peon – BA Subramanium as PW-2.

7. He stated that he knew the appellant very well.

8. The learned Metropolitan Magistrate did not place any reliance upon the said report of the hand writing expert and held that the notice was in fact served upon the appellant. It was also not disputed that the address of the appellant stated by the complainant was the correct address.

9. So far as the contention raised by the learned counsel that the appellant had failed to prove the relationship of creditor and debtor is concerned, yet again on appreciation of the evidence brought on record, the learned Trial Judge opined that the said relationship had been established.

10. Another contention which was raised by the appellant before the learned Trial Judge was that the cheque had in fact been issued to one Satya Murthy who was a property dealer, in respect whereof the learned Trial Judge held :

“In the present case, the accused, to prove the arguments, has not produced any documentary evidence supports before the Court. On the contrary, the Accused has admitted his Signature on the document Ex.P.12 produced by the Complainant. It is marked as Ex. P.12-A. In the Ex.P12, there is writing to the effect of having given the disputed cheques to the Complainant. As stated in this, these cheques are produced on 2.7.01. Therefore, in the absence of arguments of this Accused, having not produced in support, cannot be accepted. In case, if this Accused had really having given the Cheques to Sathyamurthy, if he, having mingled with this Complainant, had taken legal action against this Sathyamurthy and the Complainant, for having mis-used the alleged Cheques, but, there are no evidences before the Court, for having taken such any legal proceedings. Therefore, the defence evidence, raised by this Accused, having been rejected, the evidence produced by the Complainant, and the Rulings reported hereinabove, coupled with the and keeping in mind the rulings reported by the Learned Counsel for the complainant, in AIR 2005 Karnataka Page 4486, IL